Table of Contents
2023-11-13 Regular Meeting Agenda.pdf
Item 2 - Minutes.pdf
Item 3 - List of Demands.pdf
Item 5 - Lease Agreement NCTD 299-100-3300 Trailhead Parking Lot.docx.pdf Item 6 - 2023 SAC Climate Resolution.pdf
Item 7 - Consulting services with the Solana Center.pdf Item 8 - Award Construction Contract for 2023 Water Wastewater Pavement Storm Drain.pdf Item 9 - Update on Housing Work Program.pdf
Item 10 - SCBA Replacement.pdf
Item 11 - MDC Replacement.pdf
Item 12 - Lagoon Committee Appointment and Charter Amendment.pdf Item 13 - Introduction of an Ordinance Regulating Balloons Filled with a Gas Lighter Than Air.pdf Item 14 - EP23-073 for 157 6th Street.pdf
Item 15 - DM Guiding Principles - LOSSAN Rail Realignment Project.pdf Item 16 - 2024 Council Meeting Schedule.pdf
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Del Mar City Council Meeting Agenda
City of Del Mar, Town Hall
1050 Camino del Mar, Del Mar, California
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Civility Works: The Del Mar Code of Civil Discourse: Together we will promote inclusion; listen to understand; show respect; be clear and fair; and focus on the issue.
Regular Meeting
Monday, November 13, 2023 at 4:30 PM
Public Participation/Comment: Members of the public can participate in City Council meetings remotely and in-person.
Anyone may address the City Council for up to three minutes, at the Mayor’s discretion, on items on the agenda. Members of the public wishing to speak on items not on the agenda may do so under Public Oral Communications. Agenda items may be addressed in any order at the discretion of the Mayor. When addressing the Council, please state your name for the record. Any electronic presentations must be received before 9 a.m. on the date of the Council meeting. No PowerPoint presentations can be loaded during the meeting.
In-Person Participation: Please submit a completed “Speaker Slip”, including the item number you wish to speak on, to the City Clerk prior to the Mayor announcing the agenda item. The forms are located near the door at the rear of the Meeting Room. When called to speak, please approach the podium and state your name for the record.
Remote Participation: Members of the public can participate in the meeting remotely using the Zoom link and/or dial-in information provided below. Those wishing to comment live should join the Zoom meeting when the item(s) they wish to speak on is announced or at the meeting start time for items not on the agenda. Zoom Link:
https://us02web.zoom.us/j/84790910014; Phone: (669) 900- 6833; Meeting ID: 847 9091 0014
Written Comments: Members of the public can participate in the meeting by submitting a written red dot comment via email to [email protected]. The deadline to submit written comments is 12 p.m. on the day of the meeting and the subject line of your email should clearly state the agenda item you are commenting on.
Viewing the Meeting and Access to Agenda Materials: Members of the public can watch the meeting live on the City’s website at: http://delmar.12milesout.com/Video/Live and on Cable TV Spectrum Ch. 24, AT&T Ch. 99 starting at 4:30 PM. Agenda materials and communications from the public on agenda items, “Red Dots”, are available on the City’s website:
http://www.delmar.ca.us/AgendaCenter and a hard copy of the agenda materials are available at Del Mar City Hall and the Del Mar Library during their business hours.
Assistance for Persons with Disabilities: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Administrative Services Department at 1050 Camino del Mar or by calling (858) 755-9313.
Notification of at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
Tracy Martinez
Mayor
Dan Quirk
Deputy Mayor
Dave Druker
Council Member
Terry Gaasterland
Council Member
Dwight Worden
Council Member
Ashley Jones
City Manager
Leslie E. Devaney
City Attorney
Sarah Krietor
Administrative Services
Manager/City Clerk
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 2
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us I. CALL TO ORDER/ROLL CALL
II. CITY ATTORNEY CLOSED SESSION REPORT
III. PLEDGE OF ALLEGIANCE
IV. PUBLIC ORAL COMMUNICATIONS
Each person wishing to speak before the City Council on any matter not on the agenda shall submit a “Speaker Slip” to the City Clerk or raise their hand in Zoom when Public Oral Communication is announced. Each speaker will have up to three (3) minutes to speak at the discretion of the Mayor and may be asked clarifying questions. Information received during Public Oral Communication may be received, placed on a future agenda, or referred to the City Manager by the City Council. State law generally precludes the City Council from discussing or acting upon any topic presented during oral communications that is not described on the posted agenda.
Note: there is a time limit of 30 minutes for this section of public communications and each speaker will be heard in the order of the submission of their speaker slip. Speakers who have turned in a speaker slip prior to the time oral communications was called on the agenda, but were not heard during the initial time period shall be called to speak at the end of the agenda.
V. CITY COUNCIL COMMENTS
VI. COMMUNITY ANNOUNCEMENTS
VII. CITY MANAGER’S REPORT
VIII. PRESENTATIONS
1. RE:BEACH City of Oceanside Coastal Resilience Project Recommended Action: Receive a presentation from City of Oceanside Coastal Zone Administrator Jayme Timberlake.
Reference: Clerk’s File No. 1404-1, 1505-7
IX. CONSENT CALENDAR
All items listed on the Consent Calendar are considered to be routine and will be acted upon with one motion. There will be no separate discussion of these items unless a member of the City Council or the public so requests, in which event, the item will be pulled from the Consent Calendar and considered separately after the motion to approve the Consent Calendar. If you wish to remove an item from the Consent Calendar, please submit a “Speaker Slip” to the City Clerk or raise your hand in Zoom.
2. Approval of Minutes: October 2, 2023 Regular Meeting, October 16, 2023 Regular and Special Meeting
Recommended Action: Approve Minutes.
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 3
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Reference: Clerk’s Minutes Book
3. Ratification of List of Demands, dated November 13, 2023 Recommended Action: Ratify the List of Demands.
Reference: Clerk’s File No. 201-3
4. Waiver of Reading of Ordinances on Agenda
Recommended Action: Waive Reading of Ordinances.
Reference: Clerk’s File No. 401-4
5. Lease Agreement with the North County Transit District for Parcel 299-100- 33-00 (Trailhead Parking Lot)
Recommended Action: Staff recommends that the City Council approve a tenyear lease agreement with the North County Transit District (NCTD) for Parcel 299-100-3300 (Trailhead Parking Lot) (Attachment A); authorize the City Manager to execute the Lease Agreement; and amend the Fiscal Year (FY) 2023-2024 Operating and Capital Budget as described in the Fiscal Impact Section of this report.
Reference: Clerk’s File No. 406-1, 1506-20
6. Resolution Re-affirming the Declaration of a Climate Emergency for the City of Del Mar
Recommended Action: Mayor Martinez and Council Member Worden recommend the City Council adopt a resolution (Attachment A) re-affirming the declaration of a climate emergency for the City of Del Mar and the need for accelerated action to address the climate crisis.
Reference: Clerk’s File No. 1403-4
7. Scope of Work with the Solana Center for Environmental Innovation for Organics Recycling Compliance Support Services
Recommended Action: Staff recommends that the City Council approve a scope of work totaling $38,000 with Solana Center for Environmental Innovation (Solana Center) (Attachment A) for Organics Recycling Compliance Support Services under an existing agreement between the Solana Center and the Regional Solid Waste Association (RSWA) Joint Powers Authority, of which the City is a member agency, and authorize the City Manager to execute the required documents.
Reference: Clerk’s File No. 906-9
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 4
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us
8. Award of Construction Contract to Bali Construction, Inc. for the 2023 Water, Wastewater, Pavement, and Storm Drain Project
Recommended Action: Staff recommends that the City Council: 1) Award a $1,675,555 construction contract to Bali Construction, Inc (Attachment A) for the 2023 Water, Wastewater, Pavement, and Storm Drain Project; 2) Award a $136,340 Task Order to Dudek for Construction Management and Inspection Services (Attachment B); 3) Approve a 10% project contingency of $167,525; 4) Authorize the City Manager to execute the required documents and any contract changes necessary to complete the work; and 5) Amend the Fiscal Year 2023- 2024 Operating and Capital Budget as described in the Fiscal Impact Section of this report.
Reference: Clerk’s File No. 406-1
9. Update on the Housing Element Implementation Work Program Recommended Action: Staff recommends that the City Council receive the update on the Housing Element Work Program.
Reference: Clerk’s File No. 304-7
10. Approval to Purchase Firefighter Self Contained Breathing Apparatus and Rapid Intervention Team Packs
Recommended Action: Staff recommends that the City Council: 1) Authorize the purchase and replacement of critical fire equipment including (10) Self Contained Breathing Apparatus (SCBAs), (1) Rapid Intervention Team Packs, and related accessories totaling $122,445.77 from Municipal Emergency Services (MES) (Attachment A); 2) Authorize the City Manager to execute the necessary documents; and 3) Amend the Fiscal Year 2023-2024 Operating and Capital Budget as described in the Fiscal Impact section of this report.
Reference: Clerk’s File No. 1101-8
11. Purchase of Mobile Data Computers, Operating Software, Accessories, and Installation for Emergency Vehicles
Recommended Action: It is recommended that the City Council approve the purchase and installation of two (2) Mobile Data Computers (MDCs), Tablet Command Operating Software, Accessories for the MDCs, Installation into the Fire Engine, and amend the Fiscal Year 2023-2024 Operating and Capital Budget as described in the Fiscal Impact section of this report.
Reference: Clerk’s File No. 1101-8
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 5
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us
12. Lagoon Committee Appointment and Charter Amendment
Recommended Action: The City Council Liaisons to the Lagoon Committee recommend that: 1) the City Council re-appoint Udo Wahn as a voting member of the Lagoon Committee to serve a second full three-year term starting November 1, 2023, and ending on November 30, 2026; and 2) Adopt a Resolution (Attachment A) amending the Committee Charter to reduce the membership to seven voting members and convert the ex-officio, non-voting member to a voting member (Exhibit A to Attachment A).
Reference: Clerk’s File No. 401-5
X. PUBLIC HEARING
13. Introduction of an Ordinance Regulating Balloons Filled with a Gas Lighter Than Air
Recommended Action: Staff recommends that the City Council conduct a public hearing and introduce an ordinance (Attachment A) to add Chapter 11.48 to the Del Mar Municipal Code (DMMC) that would prohibit the use, sale, and distribution of balloons filled with a gas lighter than air.
Reference: Clerk’s File No. 401-4, 401-9, 1403-4
14. Encroachment Permit EP23-073 – Request to Retain Unpermitted Fencing, Entry Arbor, and Landscaping within the Public Right-of-Way at 157 6th Street (Applicant: Arturo Vivar)
Recommended Action: It is recommended that the City Council adopt a Resolution (Attachment A) denying Encroachment Permit EP23-073, based on the project’s non-compliance with the Del Mar Municipal Code (DMMC) and City Council Policy 110 - Private Encroachments into City Rights-of-Way (Attachment B).
Reference: Clerk’s File No. 802-1
XI. COUNCIL MEETING RECESS
XII. CITY COUNCIL OTHER BUSINESS
15. Proposed Del Mar Guiding Principles Regarding the LOSSAN Rail Realignment Project
Recommended Action: Councilmembers Druker and Gaasterland request that the City Council adopt the proposed Del Mar Guiding Principles Regarding the LOSSAN Rail Realignment Project (Attachment A).
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 6
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us Reference: Clerk’s File No. 1005-2
16. Adoption of the 2024 City Council Meeting Schedule
Recommended Action: Staff recommends that the City Council adopt the Resolution (Attachment A) approving the 2024 City Council Meeting Schedule (Exhibit A to Attachment A) or provide direction to staff regarding changes to the proposed schedule.
Reference: Clerk’s File No. 401-1
XIII. REGIONAL ORGANIZATION REPORTS
A Councilmember assigned as a liaison to a regional organization may make a written or oral report. State law precludes the Council from commenting on, discussing, or acting on a report unless the item of business within the report is described in the agenda.
A. 22nd District Agricultural Association Community Relations Committee (Gaasterland/Martinez)
B. Clean Energy Alliance JPA (CEA) Board of Directors (Druker/Worden) C. CSA-17 Ambulance District Advisory Board (Martinez/Quirk) D. Fire Governance Board, Solana Beach/Del Mar/Encinitas (Quirk/Martinez) E. League of California Cities – San Diego Chapter (Martinez/Worden) F. League of California Cities – Coastal Cities Group (Worden) G. North County Transit District (NCTD) (Druker/Gaasterland) H. Regional Solid Waste Association (Worden/Quirk)
I. San Diego Association of Governments Board (SANDAG)
(Gaasterland/Martinez/Druker
J. SANDAG Borders Committee (Druker)
K. SANDAG Regional Planning Committee (Gaasterland)
L. SANDAG Shoreline Preservation Working Group
(Worden/Gaasterland/Martinez)
M. SANDAG LOSSAN Executive Task Force (Druker/Gaasterland) N. San Diego Metropolitan Wastewater Commission/JPA (Worden/Quirk/Druker) O. San Dieguito River Valley Regional Open Space Park JPA –Executive Committee (Worden/Quirk)
P. Other Regional Organization Reports
XIV. COUNCIL COMMITTEES/SUBCOMMITTEES/COMMUNITY ORG REPORTS A Councilmember assigned as a liaison to a City Committee, Council Subcommittee OR Community Organization may make a written or oral report. State law precludes the Council from commenting on, discussing, or acting on a report, unless the item of business within the report is described in this agenda.
A. Arts Advisory Committee (Druker)
B. Clean Water Rate Project
C. Del Mar Community Connections (Martinez/Worden)
D. Del Mar Village Association (Gaasterland/Martinez)
E. Finance Committee (Druker/Worden)
Del Mar City Council Regular Meeting November 13, 2023
Agenda Page 7
1050 Camino del Mar, Del Mar, CA 92014 www.delmar.ca.us F. Housing Subcommittee (Gaasterland/Martinez)
G. Human Resources Subcommittee (Druker/Worden)
H. Legislative Subcommittee (Gaasterland/Martinez)
I. Measure Q Citizen Oversight Committee (Gaasterland/Quirk) J. Parks and Recreation Committee (Martinez/Worden)
K. Del Mar Railroad Committee (Druker/Gaasterland)
L. Lagoon Committee (Quirk/Worden)
M. Sea-Level Rise Adaptation Plan Implementation Subcommittee (Gaasterland/Martinez)
N. Shores Advisory Committee
O. Sustainability Advisory Committee (Martinez/Worden)
P. Traffic and Parking Advisory Committee (Quirk/Worden) Q. Undergrounding Project Advisory Committee (Druker/Gaasterland) R. Other Committee-Subcommittee Reports
XV. UPCOMING AGENDA ITEMS
The following topics/items are tentatively planned for upcoming agendas. The title, wording, and planned date for these items are subject to change. Final agendas are posted at City Hall 72 hours in advance of the meetings and are also posted on our web site with the accompanying staff report. Please watch our web site:
www.delmar.ca.us for City Council Agendas.
December 4, 2023
2024 Advisory Committee Meeting Schedule
Second Reading and Adoption of Ordinance Prohibiting the Use, Sale and Distribution of Balloons Filled With a Gas Lighter Than Air
Utility Undergrounding District 1A Project Final Design, Permit Approval; and Authorization to Initiate the Public Bidding Process
Introduction of an Ordinance to Amend Accessory Dwelling Unit Regulations and Local Coastal Program
Introduction of an Ordinance to Amend Accessory Dwelling Unit Incentive Program Adoption of Resolution to Create an Accessory Dwelling Unit Amnesty Program XVI. CERTIFICATION
I, Sarah Krietor, Administrative Services Manager/City Clerk for the City of Del Mar, hereby certify that a copy of this agenda was posted at City Hall on the 8th day of November, 2023 at approximately 5:30 p.m.
___________________________________________ 11/8/2023
Sarah Krietor, Administrative Services Manager/ Date
City Clerk
CITY OF DEL MAR
CITY COUNCIL REGULAR MEETING MINUTES
OCTOBER 2, 2023
City of Del Mar Town Hall
1050 Camino del Mar, Del Mar California 92014
The minutes set forth the actions taken by the City Council on the matters stated. Audio/video recordings of the City Council proceedings are retained for a period of ten years, in accordance with the City's Records Retention Schedule. Audio/video recordings, as well as written materials presented to the City Council, including Red Dots (materials provided to the City Council after the agenda has published), are available on the City’s website at www.delmar.ca.us/AgendaCenter or by contacting the Administrative Services Department at (858) 755-9313.
CALL TO ORDER
Mayor Martinez called the Regular Meeting to order at 4:30 p.m.
ROLL CALL
Present: Mayor Tracy Martinez; Deputy Mayor Dan Quirk; Councilmembers Dave Druker, Terry Gaasterland, and Dwight Worden
CITY ATTORNEY CLOSED SESSION REPORT
City Attorney Leslie Devaney reported that all members of the City Council were present and that there were no reportable actions for the October 2, 2023, City Council Closed Session meeting. She reported that Councilmember Druker was recused from items A and B due to living within 500 feet of the subject matter of that discussion.
City Attorney Leslie Devaney reported that there were no legally required reportable actions from the City Council Closed Session that occurred on September 29, 2023; however, the City Council reports that the majority of the City Council voted not to accept the draft executive summary of the investigation and not to accept or view the draft investigation report due to both being incomplete. City Attorney Devaney reported further that there would be no charge for the investigation and the City Council authorized the hiring of another investigator to begin an investigation of the allegations already identified as soon as possible,
PLEDGE OF ALLEGIANCE
Mayor Martinez led the Pledge of Allegiance.
PUBLIC ORAL COMMUNICATIONS
None.
CITY COUNCIL COMMENTS & COMMUNITY ANNOUNCEMENTS
Councilmember Worden reported on the first San Diego Association of Governmetns (SANDAG) Sediment Management Technical Taskforce meeting; SANDAG tunneling issues update, and League of 1 November 13, 2023 Item 02
City Council Regular Minutes
October 2, 2023
California Cities Annual Conference. Mayor Martinez reported on an upcoming Coastal Cities Mayors meeting.
CITY MANAGER’S REPORT
City Manager Ashley Jones reported on City traffic conduit repairs at intersection Via De La Valle, Jimmy Durante Boulevard and Valley Avenue; settlement agreement with Winston School; and announced an upcoming SANDAG’s workshop related to the LOSSAN Rail Realignment Project.
PRESENTATIONS
ITEM 1: PROCLAMATION IN SUPPORT FOR AND DECLARATION OF CALIFORNIA CLEAN AIR DAY ON OCTOBER 4, 2023 (CLERK’S FILE NO. 1201-5)
Mayor Martinez presented a proclamation in support for and declaration of California Clean Air Day.
CONSENT CALENDAR
Management Analys Nestor Machado read the titles of the items included on the Consent Calendar.
There were no public speakers for the consent calendar items.
IT WAS MOVED BY COUNCILMEMBER DAVE DRUKER, SECONDED BY COUNCILMEMBER TERRY GAASTERLAND TO APPROVE THE CONSENT CALENDAR ITEMS 2 THROUGH 9 AND ITEM 12 THAT WAS MOVED TO THE CONSENT CALENDAR. (VOTE 5-0) Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
ITEM 2: APPROVAL OF MINUTES: APPROVAL OF MINUTES: SEPTEMBER 18, 2023 REGULAR AND SPECIAL MEETING, SEPTEMBER 25, 2023 SPECIAL MEETING (CLERK’S MINUTES BOOK)
Council approved the minutes, on consent.
ITEM 3: RATIFICATION OF LIST OF DEMANDS, DATED OCTOBER 2, 2023 (CLERK’S FILE NO. 201-3)
Council approved the list of demands, on consent.
ITEM 4: WAIVER OF READING OF ORDINANCES ON AGENDA (CLERK’S FILE NO. 401-4) Council waived the reading of ordinances, on consent.
ITEM 5: CHARGEPOINT ELECTRIC VEHICLE CHARGING STATIONS WARRANTY COVERAGE AND MAINTENANCE CONTRACT EXTENSION (CLERK’S FILE NO. 406- 1)
Council authorized the City Manager to execute a five-year network service and warranty extension through May 24, 2029, with the City’s electrical vehicle charging vendor, ChargePoint, in an amount not to exceed $22,350; and amended the Fiscal Year 2023- 2024 Operating and Capital Budget as indicated in the Fiscal Impact section of this report, on consent.
2 November 13, 2023 Item 02
City Council Regular Minutes
October 2, 2023
ITEM 6: ALERT AND WARNING MEMORANDUM OF AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF DEL MAR (CLERK’S FILE NO. 406-1, 1503-5) Council approved the Alert and Warning Memorandum of Agreement between the County of San Diego and the City of Del Mar; and authorized the City Manager to execute the Memorandum of Agreement, on consent.
ITEM 7: AWARD OF CONSTRUCTION CONTRACT FOR 25TH STREET LIFEGUARD TOWER EXTERIOR DOOR REPLACEMENT PROJECT (CLERK’S FILE NO. 406-1) Council awarded a $39,635 construction contract with CTT Contemporary Furniture Incorporated (CTT Furniture) for the 25th Street Lifeguard Tower Exterior Door Replacement Project (Project); approved a project contingency of $5,000; and authorized the City Manager to execute the contract and any contract changes necessary to complete the work, on consent.
ITEM 8: PARKS AND RECREATION COMMITTEE APPOINTMENT (CLERK’S FILE NO. 401- 5)
Council appointed Ann Feeney as a voting member to the Committee to serve the balance of a vacant term starting October 2, 2023, and ending on January 1, 2024, on consent.
ITEM 9: PURCHASE OF REAL PROPERTY RELATED TO THE DEL MAR RIVERPATH PHASE 3 PROJECT (CLERK’S FILE NO. 702-1)
Council approved a Purchase & Sale Agreement for the purchase of Assessor Parcel Number (APN) 299-200-51 (Property); adopted Resolution 2023-29, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, ACCEPTING REAL PROPERTY KNOWN AS ACCESSOR PARCEL NUMBER (APN) 299-200-51 FROM
ALEXANDER VONLOKNER FOR USE AND OPERATION OF PUBLIC BENEFIT TO THE CITY OF DEL MAR; authorizing recordation of a Certificate of Acceptance and a Grant Deed to purchase real property known as APN 299-200-51; and authorized the City Manager to execute and record documents necessary to facilitate acquisition of the Property, on consent.
PUBLIC HEARING
ITEM 10: CONTINUED TO OCTOBER 16, 2023 COUNCIL MEETING: INTRODUCE UPDATED
ACCESSORY DWELLING UNIT (ADU) ORDINANCE, INCLUDING PROVISIONS FOR TINY HOMES (CLERK’S FILE NO. 303-1, 304-7, 401-4, 401-9) City Council continued the item to the October 16, 2023, City Council meeting.
ITEM 11: CONTINUED TO OCTOBER 16, 2023 COUNCIL MEETING: INTRODUCE UPDATED ADU INCENTIVE PROGRAM ORDINANCE (UNCODIFIED) (CLERK’S FILE NO. 303-1, 304-7, 401-4)
City Council continued the item to the October 16, 2023, City Council meeting. 3 November 13, 2023 Item 02
City Council Regular Minutes
October 2, 2023
ITEM 12: RIVERPATH DEL MAR EXTENSION PROJECT PHASE 3 DESIGN REVIEW PERMIT, LAND CONSERVATION PERMIT, AND FINAL DESIGN ACCEPTANCE (CLERK’S FILE NO. 301-5)
Mayor Martinez opened and closed the public hearing. There were no public speakers. The item was moved to the consent calendar for approval.
Council adopted a Resolution 2023-40, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL MAR, CALIFORNIA, TO APPROVE DESIGN REVIEW (DRB23-008) AND LAND CONSERVATION (LC23-003) PERMITS TO CONSTRUCT AN APPROXIMATELY 2,070 LINEAR-FOOT EXTENSION OF
THE RIVERPATH DEL MAR TRAIL WITH ASSOCIATED GRADING NORTH OF SAN DIEGUITO DRIVE IN THE FLOODWAY ZONE AND LAGOON OVERLAY ZONE, IN DEL MAR, CALIFORNIA” conditionally approving Design Review Permit DRB23-008 and Land Conservation Permit LC23-003 for the construction and associated grading of the Riverpath Del Mar Extension Project Phase 3; and 2) Accepted the Final Design, on consent.
CITY COUNCIL OTHER BUSINESS
ITEM 13: CONTINUED TO OCTOBER 16, 2023 COUNCIL MEETING: RESOLUTION TO ADOPT ADU AMNESTY PROGRAM/POLICY (CLERK’S FILE NO. 303-1, 304-7) City Council continued the item to the October 16, 2023, City Council meeting.
ITEM 14: DISCUSSION OF REGULATORY FRAMEWORK EXAMPLES AND POLICY DIRECTION FOR SHORT TERM RENTAL REGULATION (CLERK’S FILE NO. 301-19) An introduction to the item was provided by City Manager Jones. A presentation was provided by Principal Planner Amanda Lee and Deputy City Attorney Wendy House.
Council questions focused on category #1 City can Define Short Term Rentals (STR) Ownership Types clarifying example of maximum 90 days/year; advertising versus identification signage regulations; definition of tenancy; multi-unit Accessory Parcel Numbers for condominiums; exclusion of special events; 25 or more people in public spaces requiring a special event permit; and operational requirements for noise.
Council questions further focused on category #4 Overall Cap regarding Short Term Rentals capacity within 5 miles radius of other visitor accommodations; official registry process for STRs; Laguna Beach’s maximum non-hosted STRs numbers; no code enforcement pertaining to operating an STR; accommodations of existing STRs above the set cap and making the permit non-transferable. Council questions focused on category # 6 Duration of STR Rental and Use regarding the maximum length of stay per year; category #8 Manner of Rental regarding parking requirements; locations of advertised STRs and 148 existing STRs equivalence to 5.7% of total dwelling units.
Mayor Martinez opened the item to public comment and the following people spoke:
1) Gina Mattern (time donation by Gerard Pascale and Nina Detrow) 2) Kimberly Jackson (time donation by Rory Revier)
3) Ken Assi
Mayor Martinez closed the item to public comment.
4 November 13, 2023 Item 02
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October 2, 2023
Council discussion focused on #1 issue category (STR ownership types) and discussed limiting permit issuance to the owner; distinguishing Primary Residence and Full-Time STR; including a long-term tenant option in Primary Residence description; and considering category for units with primary resident that is not the owner.
Council discussion focused on #2 issue category (STR Permit and Licensing Procedures) agreeing with an annual renewal requirement; $1 million in property insurance; maintaining and providing records of STR operations for audit and inspection purposes; identifying the permit/license number on advertisements; making the permit non-transferable; issuing to the property owner only; and staff level approval and appeals process if the permit/license or renewal is denied, suspended, revoked to be heard by an Administrative Hearing Officer. Council further discussed requiring the STR permit; and preissuance safety measures self-checklist requirement with City’s ability to do site inspections throughout the time.
Council discussion focused on #3 issue category (Designated Point of Contact for Timely Response to Complaints) and concurred designating a local 24-hour point of contact to respond within 30 minutes; requiring on-site posting; the City implementing a licensing software system to facilitate STR permitting; and mailing contact information to property owners/occupants within 300 feet radius providing the City’s ordinance, link to the City’s website, 24-hour point of contact information and maximum number of occupants and parking spaces available.
Council discussion focused on #4 issue category (Overall STR Cap to Preserve Housing Stock) agreeing to set a maximum cap at 5% of total dwelling units; and accommodate existing STRs above the cap as needed. Councilmember Worden noted his concerns accommodating STRs above the cap.
Council discussion focused on #5 issue category (Limits on Concentration by Neighborhood)agreeing with Staff’s recommendations. Councilmember Worden noted importance of breaking Citywide overall limit by neighborhoods. Council further discussed STRs concentration and asked the Staff to come back with some policy options. Councilmember Gaasterland noted concerns for rental apartment building units becoming STRs and asked to consider for by-right and density bonuses projects to be precluded from having STRs.
Council discussion focused on #6 issue category (Limits on the Duration and Use of STR) recommendations and agreed to require a three-night minimum length of stay; prohibit special events; and specify the minimum age for rental to be 25 years of age.
Council further discussed and agreed with Staff’s recommendation for #7 issue category (Good Neighbor Policy) to identify good neighbor policies and establish a procedure; #8 issue category(Operational Requirements) to require compliance with existing legislation; and #8 issue category (Operational Requirements) to identify options for monitoring and enforcement.
COUNCIL MEETING RECESS:
The City Council took a meeting recess from approximately 7:45 p.m. to 8:06 p.m.
ITEM 15: CITY COUNCIL CONSIDERATION OF FOLLOW UP ACTIONS PURSUANT TO THE
AGREEMENT FOR WITHDRAWAL OF THE REFERENDUM AGAINST CITY ORDINANCE 973 RELATING TO ALLOWABLE LAND USE AND DEVELOPMENT IN
THE NORTH COMMERCIAL ZONE INCLUDING SHORT TERM RENTALS AND CONDOMINIUM CONVERSIONS (CLERK’S FILE NO. 301-19, 302-7) 5 November 13, 2023 Item 02
City Council Regular Minutes
October 2, 2023
Mayor Martinez and Deputy Mayor Quirk were recused due to living within 500 feet of the subject matter of the discussion.
An introduction to the item was provided by Councilmember Gaasterland. An overview was provided by Principal Planner Amanda Lee.
Council questions focused on the timeline; possible conflicts of interest; and proponent’s submitted public comment.
There were no public speakers for this item.
Council discussion focused on process and timing and framework for Condominium Conversion to be brought back prior to beginning of 2024.
IT WAS MOVED BY COUNCILMEMBER WORDEN, SECONDED BY COUNCILMEMBER
GAASTERLAND TO DEFER ANY DECISIONS ON LIMITS FOR CONDOMINIUM CONVERSIONS AND STRs IN THE NC ZONE TO COINCIDE WITH THE CITYWIDE POLICY DISCUSSIONS AND
DECISIONS THAT ARE FORTHCOMING RELATED TO THOSE RESPECTIVE SPECIAL PROJECTS
IN PROCESS AND TO BRING BACK A TIMELINE FOR PROCESSING CONDOMINIUM
CONVERSIONS BY THE END OF THE YEAR WITH MAYOR MARTINEZ AND DEPUTY MAYOR QUIRK RECUSED. (VOTE 3-0-2)
Ayes: and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: Mayor Martinez and Deputy Mayor Quirk.
ITEM 16: APPROVAL OF CONCEPTUAL DESIGN FOR THE 20TH STREET LIFEGUARD TOWER DRIVEWAY PROJECT (CLERK’S FILE NO. 102-4, 103-6)
An introduction to the item was provided by City Manager Ashley Jones. A presentation was provided by Project Manager II Martin Boyd and Engineer Geoffrey Retemeyer P.E. with Michael Baker International (MBI).
Council discussion focused on administrative design review process; access to the public; expanded driveway for the Lifeguards; whether unloading area would be available for the beach goers; whether the surface will be pervious; and whether the existing puddling on Ocean and 20th Street would be impacted.
There were no public speakers for this item.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY MAYOR MARTINEZ TO APPROVE THE CONCEPTUAL DESIGN FOR THE 20TH STREET LIFEGUARD TOWER DRIVEWAY PROJECT. (VOTE 5-0)
Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
ITEM 17: APPROVAL OF RECOMMENDED DESIGN ALTERNATIVE (PHASE I) AND TASK
ORDER WITH MICHAEL BAKER INTERNATIONAL TO PERFORM ENGINEERING DESIGN SERVICES (PHASE II) FOR THE HOSKA ALLEY PROJECT (CLERK’S FILE NO. 406-1)
6 November 13, 2023 Item 02
City Council Regular Minutes
October 2, 2023
A presentation was provided by Project Manager II Martin Boyd and Engineer Geoffrey Retemeyer P.E. with Michael Baker International (MBI).
Council questions and discussion focused on surface improvements; drainage from the alley to the existing conveyance system at the intersection of Camino Del Mar and 9th Street and trash capture devices; impact on the 9th street drainage; slight increase in runoff to be accommodated in 9th street runoff area; public outreach and engagement; not recommending alternative 3 due to drywell system’s odor; underground piping through the existing encroachments; the anticipated timeline; issue of drainage catch basin discharging across private property located at 406 8th Street; proposed paved alley with center ribbon gutter due to limited right-of-way; public alley versus private alley definitions; handling of existing encroachments as part of the project; and clarification on the cost of the project.
There were no public speakers for this item.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY MAYOR MARTINEZ TO 1) APPROVE FURTHER DESIGN OF ALTERNATIVE 2 FROM THE PHASE I HOSKA ALLEY DEVELOPMENTAL ALTERNATIVES ANALYSIS; 2) APPROVE A $41,100 TASK ORDER WITH
MICHAEL BAKER INTERNATIONAL (MBI) TO PROCEED WITH PHASE II FINAL PLANS, SPECIFICATIONS, AND ESTIMATE (PS&E) FOR THE DEVELOPMENT OF HOSKA ALLEY; AND 3) AUTHORIZE THE CITY MANAGER TO EXECUTE THE TASK ORDER. (VOTE 5-0) Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
ITEM 18: CONSIDERATION OF CITY COUNCIL MEETING SCHEDULE CHANGE (CLERK’S FILE NO. 401-1)
A brief presentation was provided by Mayor Martinez.
Council questions and discussion focused on regular council meeting days for other cities; desire to align Del Mar’s meeting day with the majority of agencies in the region; whether and how this change would affect agenda process timing; and potential scheduling conflicts. As part of the Council discussion, Councilmember Gaasterland indicated that changing from a Monday to a Tuesday or Wednesday regular Council meeting day would not be possible at this time due to her current work schedule and obligations.
The Council decided to continue with the current meeting schedule, and agreed that this may be something to revisit in the future when/if possible based on Councilmember availability.
REGIONAL ORGANIZATION AND COUNCIL COMMITTEES/SUBCOMMITTEES/COMMUNITY
ORGANIZATION REPORTS
City Council representatives reported on the Clean Energy Alliance; and Finance Committee.
ADJOURNMENT
Mayor Martinez adjourned the meeting at 9:16 p.m.
__
Nestor Machado, Management Analyst
7 November 13, 2023 Item 02
DEL MAR CITY COUNCIL
SPECIAL MEETING MINUTES
CLOSED SESSION
OCTOBER 16, 2023
City of Del Mar Town Hall
1050 Camino del Mar, Del Mar, California
CALL TO ORDER
Mayor Martinez called the meeting to order at 3:44 P.M.
ROLL CALL
Present: Mayor Tracy Martinez; Deputy Mayor Dan Quirk; Councilmembers Dave Druker, Terry Gaasterland and Dwight Worden
CLOSED SESSION
A) Conference with Legal Counsel – Existing Litigation
Olson v. City of Del Mar
San Diego Superior Court Case No. 37-2023-0023407-CU-PT-CTL.
Authority: Government Code Section 54956.9(d)(1)
Reportable Action: None.
B) Conference with Legal Counsel – Existing Litigation
Olson v. City of Del Mar
San Diego Superior Court Case No. 37-2019-00069156-CU-MC-CTL Authority: Government Code Section 54956.9(d)(1)
Reportable Action: None.
C) Conference with Legal Counsel - Significant Exposure to Litigation Number of Cases: One
Description: Potential liabilities related to code enforcement Authority: Government Code Section 54956.9(b)
Reportable Action: None.
ADJOURNMENT
Mayor Martinez adjourned the meeting at 4:27 P.M.
_________________________________________
Sarah Krietor, Administrative Services Manager/
City Clerk
8 November 13, 2023 Item 02
CITY OF DEL MAR
CITY COUNCIL REGULAR MEETING MINUTES
OCTOBER 16, 2023
City of Del Mar Town Hall
1050 Camino del Mar, Del Mar California 92014
The minutes set forth the actions taken by the City Council on the matters stated. Audio/video recordings of the City Council proceedings are retained for a period of ten years, in accordance with the City's Records Retention Schedule. Audio/video recordings, as well as written materials presented to the City Council, including Red Dots (materials provided to the City Council after the agenda has published), are available on the City’s website at www.delmar.ca.us/AgendaCenter or by contacting the Administrative Services Department at (858) 755-9313.
CALL TO ORDER
Mayor Martinez called the Regular Meeting to order at 4:35 p.m.
ROLL CALL
Present: Mayor Tracy Martinez; Deputy Mayor Dan Quirk; Councilmembers Dave Druker, Terry Gaasterland, and Dwight Worden
CITY ATTORNEY CLOSED SESSION REPORT
City Attorney Leslie Devaney reported on the October 9, 2023, closed session that there were no legally reportable actions and that the City Council reports that a majority of the City Council voted to retain special counsel to oversee the continued investigation. City Attorney Leslie Devaney reported that there were no recusals or reportable actions for the October 16, 2023, City Council Closed Session meeting.
PLEDGE OF ALLEGIANCE
Mayor Martinez led the Pledge of Allegiance.
PUBLIC ORAL COMMUNICATIONS
Mayor Martinez opened public oral communication and the following people spoke:
1) Carol Kerridge spoke regarding the Climate Change symposium on November 12, 2023 2) Terri-Ann Skelly spoke on behalf of San Dieguito Alliance for Drug Free Youth in support of Red Ribbon Week
3) Peggy Walker on behalf of San Dieguito Alliance for Drug Free Youth in support of Red Ribbon Week
CITY COUNCIL COMMENTS & COMMUNITY ANNOUNCEMENTS
None.
CITY MANAGER’S REPORT
City Manager Ashley Jones reported on the San Diego Association of Governments (SANDAG) workshop held on October 4, 2023, to provide information to the public on the LOSSAN Rail Realignment Study/Project and the upcoming SANDAG virtual meeting on October 19, 2023, from 6:00 - 7:30 p.m. 9 November 13, 2023 Item 02
City Council Regular Minutes
October 16, 2023
CONSENT CALENDAR
Administrative Services Manager/City Clerk Sarah Krietor read the titles of the items included on the Consent Calendar. There were no public speakers for the consent calendar items.
IT WAS MOVED BY COUNCILMEMBER DRUKER, SECONDED BY COUNCILMEMBER GAASTERLAND TO APPROVE THE CONSENT CALENDAR ITEMS 1 THROUGH 4. (VOTE 5-0) Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
ITEM 1: APPROVAL OF MINUTES: SEPTEMBER 29, 2023 SPECIAL MEETING, OCTOBER 2, 2023 SPECIAL MEETING, OCTOBER 9, 2023 SPECIAL MEETING (CLERK’S
MINUTES BOOK)
Council approved the minutes, on consent.
ITEM 2: RATIFICATION OF LIST OF DEMANDS, DATED OCTOBER 16, 2023 (CLERK’S FILE NO. 201-3)
Council approved the list of demands, on consent.
ITEM 3: WAIVER OF READING OF ORDINANCES ON AGENDA (CLERK’S FILE NO. 401-4) Council waived the reading of ordinances, on consent.
ITEM 4: APPOINTMENT TO THE FINANCE COMMITTEE AND AMENDMENT TO COMMITTEE CHARTER RELATED TO MEMBERSHIP (CLERK’S FILE NO. 401-5)
Council reappointed Jeff Sturgis as a voting member to the Committee to serve a partial term of eighteen (18) months effective November 10, 2023, and ending on May 30, 2025; and adopted Resolution 2023-41, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF DEL MAR, CALIFORNIA, AMENDING AND RESTATING THE FINANCE
COMMITTEE CHARTER TO REDUCE MEMBERSHIP SIZE FROM NINE TO SEVEN MEMBERS”, which will be accomplished over time through attrition, on consent.
ITEM 5: AGREEMENT WITH SCI CONSULTING GROUP FOR ASSESSMENT ENGINEERING SERVICES FOR SAN DIEGUITO DRIVE IMPROVEMENTS (CLERK’S FILE NO. 405-3, 406-1)
The item was pulled from the Consent Calendar for City Council questions. Council questions focused on whether a Proposition 218 process is required to form an assessment district; how general benefit will be assessed; and how the concept of general benefit applies to assessment districts.
IT WAS MOVED BY COUNCILMEMBER DRUKER, SECONDED BY
COUNCILMEMBER GAASTERLAND TO APPROVE A $41,500 AGREEMENT WITH
SCI CONSULTING GROUP (SCI) TO PERFORM ASSESSMENT ENGINEERING SERVICES FOR IMPROVEMENTS TO SAN DIEGUITO DRIVE; AND AUTHORIZED THE CITY MANAGER TO EXECUTE THE AGREEMENT. (VOTE 5-0)
10 November 13, 2023 Item 02
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October 16, 2023
Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
PUBLIC HEARING
ITEM 6: CONTINUED FROM OCTOBER 2, 2023: INTRODUCTION OF AN ORDINANCE TO AMEND THE CITY’S ACCESSORY DWELLING UNIT REGULATIONS AND CERTIFIED LOCAL COASTAL PROGRAM (CLERK’S FILE NO. 303-1, 304-7, 401-4, 401-9)
An introduction to the item was provided by Planning and Community Development Director Karen Brindley. A presentation was provided by Principal Planner Amanda Lee. Assistant City Attorney Ralph Hicks and Associate Planner Adriana Jaramishian were available to answer City Council questions.
Council questions focused on where the public can find the City’s Local Coastal Program (LCP) on the City’s website; clarification on the history of the City’s LCP; whether the Accessory Dwelling Unit (ADU) ordinance previously adopted by the City Council is now void based on new State legislation; septic tanks; parking; tree protections; deed restrictions; whether the City can hold hearings for ADU applications; time constraints to process the required ADU ordinance; ADU height limits; public safety concerns; Federal Emergency Management Agency (FEMA) flood plain maps; potential reporting requirements related to ADU uses; whether the City can provide a courtesy notice to neighbors when an ADU application is submitted; noticing provisions in the proposed ordinance; ADU development in areas with narrow and deficient road widths; retaining walls; slopes; and whether the ordinance requires California Department of Housing and Community Development (HCD) approval.
Mayor Martinez opened the item to public comment and the following people spoke:
1) Richard Jamison with a donation of time from Dolores Davies Jamison 2) Nancy Stoke
3) John Imperato
4) Chic Sullivan
5) Julie Hamilton
6) Mark Wyland
Mayor Martinez closed the item to public comment.
Council discussion focused on the process and timing constraints for adoption of an ADU ordinance; California Environmental Quality Act (CEQA) as it relates to ADU regulations; desire for Council to see a redline of the proposed ordinance; relationship between the Coastal Act and State housing law; City’s LCP document and related amendments; deed restrictions; concerns about noticing, public safety and fire protection; and revisions to Ordinance Section 30.91.040(X) of the proposed ordinance as shown in the Staff red dot.
City Council consensus was for staff to return to City Council at a future meeting with the following information and amended proposed ordinance to incorporate recommendations included in the red dot submitted by resident Richard Jamison; incorporating Ordinance Section 30.91.040(X) as shown in the staff report; provide a red line version of the Ordinance and matrix showing the proposed changes to the ADU ordinance; provide information to the City Council on the City’s certified Local Coastal Program, including the original LCP and certified amendments.
City Council consensus was to prioritize adoption of ADU regulations and to defer short-term rental regulations to future City Council meetings likely in January 2024. 11 November 13, 2023 Item 02
City Council Regular Minutes
October 16, 2023
ITEM 7: CONTINUED FROM OCTOBER 2, 2023: INTRODUCTION OF AN ORDINANCE TO
AMEND THE ACCESSORY DWELLING UNIT INCENTIVE PROGRAM TO IMPLEMENT HOUSING ELEMENT PROGRAM 2A (INCENTIVES TO CREATE LOW INCOME UNITS) AND PROGRAM 5A (PRESERVATION OF EXISTING MULTI-UNIT HOUSING) (CLERK’S FILE NO. 303-1, 304-7, 401-4)
This item was not heard by the City Council and will return to Council for consideration at the December 4, 2023, meeting.
ITEM 8: RESOLUTION DESIGNATING UTILITY UNDERGROUNDING DISTRICT (UUD) 1B – STRATFORD COURT NORTH (CLERK’S FILE NO. 406-1, 1001-2)
Councilmember Druker recused from participating in this agenda item due to living within 500 feet of the subject matter of the discussion. An introduction to the item was provided by City Manager Jones. A presentation was provided by Project Manager II Martin Boyd. City undergrounding consultant Bridget Black with Utility Specialists was available to answer questions.
Council questions and discussion focused on private property laterals and easements needed in the district as part of the project; whether there is opportunity to construct 1A, X1A, and IB at the same time; whether it is possible to include the poles on 10th Street for the 941 Camino del Mar project (paying in lieu fees) into the 1B project; and timeline for design and construction.
There were no public speakers for the item.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY MAYOR MARTINEZ TO ADOPT RESOLUTION 2023-42, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, ESTABLISHING AN UNDERGROUND UTILITY DISTRICT IN THE CITY OF DEL MAR, ON STRATFORD COURT (WEST OF CAMINO DEL MAR 11TH STREET TO JUST NORTH OF 15TH STREET (L’AUBERGE DEL MAR))”, IDENTIFIED AS UNDERGROUND UTILITY DISTRICT (UUD) 1B (STRATFORD COURT NORTH) SUBJECT TO CALIFORNIA PUBLIC UTILITIES COMMISSION (CPUC) RULE 20 IN ACCORDANCE WITH DEL MAR MUNICIPAL CODE SECTION
23.54.030; 2) ALLOCATE $445,000 IN FUNDING FROM THE MEASURE Q FUND FOR THE PRECONSTRUCTION ACTIVITIES FOR UUD 1B (STRATFORD COURT NORTH); 3) APPROVE A $439,747 TASK ORDER (ATTACHMENT B) WITH UTILITY SPECIALISTS SOUTHWEST, INC. TO PERFORM PRE-CONSTRUCTION SERVICES FOR UUD 1B (STRATFORD COURT NORTH); AND 4) AUTHORIZE THE CITY MANAGER TO EXECUTE THE TASK ORDER. (VOTE 4-0-1 WITH
COUNCILMEMBER DRUKER RECUSED)
Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Gaasterland and Worden; Noes:
0; Absent: 0; Abstain: Councilmember Druker.
COUNCIL MEETING RECESS:
The City Council took a meeting recess from approximately 8:27 – 8:48 p.m.
Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
12 November 13, 2023 Item 02
City Council Regular Minutes
October 16, 2023
CITY COUNCIL OTHER BUSINESS
ITEM 9: INITIAL CONSIDERATION OF AN APPEAL OF THE CITY MANAGER’S APPROVAL OF ENCROACHMENT PERMIT EP22-101
EP APPELLANT: TANYA YOUNG AND MICHAEL MCMANUS
APPELLANT’S ADDRESS: 919 KLISH WAY (APN: 300-263-20) (CLERK’S FILE NO. 802-1)
City Attorney Leslie Devaney explained the protocols for the initial consideration. Councilmember Worden disclosed that he met with the appellant’s representative Attorney Matt Peterson at the site and read the agenda materials. Councilmember Gaasterland disclosed that she reviewed the agenda materials and met with appellant’s representative Attorney Matthew Peterson. Councilmember Druker disclosed that he visited the site, did not meet with the appellant or their representative, and that he was on the City Council in 2000 when the prior encroachment permit was approved for the property. Mayor Martinez disclosed that she met with the appellant Tanya Young and her representative Attorney Matt Peterson at the site. Deputy Mayor Quirk disclosed that he met with Attorney Matthew Peterson and Tanya Young at the site.
A presentation was provided by Principal Planner Matt Bator. Assistant City Attorney Ralph Hicks was available to answer questions.
Council questions focused on whether it is standard for the City to require an encroachment permit to remove vegetation and the scope of the hearing should the City Council set the item for a de novo hearing.
The appellant’s representative Attorney Matthew Peterson provided a presentation.
Mayor Martinez opened the item to public comment and the following people spoke:
1) Mary Friestedt spoke in support of the appellant
2) John McNulty spoke in support of staff’s recommendation 3) Alana McNulty spoke in support of staff’s recommendation 4) Carol Kerridge spoke to provide history on the site
5) Nicholas Frost spoke in support of the appellant
6) Alice Brown spoke in support of the appellant
7) Tanya Scheiderman spoke in support of the appellant
Mayor Martinez closed the item to public comment.
City Attorney Leslie Devaney provided clarification that the de novo hearing would be specific to the revised minor encroachment permit. Planning and Community Development Director Karen Brindley provided an explanation of the process for a major encroachment permit application. Council questions focused on public safety and flooding issues.
Mayor Martinez and Councilmembers Gaasterland and Worden indicated they would like to set the item for a de novo hearing, which exceeded the threshold of two members in support in order to set the matter for a de novo hearing.
ITEM 10: CONTINUED FROM OCTOBER 2, 2023: ADOPTION OF A CITY COUNCIL POLICY TO IMPLEMENT HOUSING ELEMENT PROGRAM 2B (ACCESSORY DWELLING UNIT AMNESTY PROGRAM TO CREATE AFFORDABLE UNITS) (CLERK’S FILE NO. 303- 1, 304-7)
13 November 13, 2023 Item 02
City Council Regular Minutes
October 16, 2023
This item was not heard by the City Council and will return to Council for consideration at the December 4, 2023, meeting.
ITEM 11: UNDERGROUNDING PROGRAM UPDATE AND APPROVAL OF TASK ORDER AMENDMENTS WITH UTILITY SPECIALISTS SOUTHWEST, INC. FOR UTILITY UNDERGROUNDING DISTRICTS 1A - STRATFORD COURT SOUTH AND X1A - CREST CANYON PRE-CONSTRUCTION SERVICES (CLERK’S FILE NO. 406-1, 1001- 2)
City Attorney Devaney provided an overview of the conflict analysis for this agenda item. Councilmember Druker and Gaasterland were recused from asking questions or voting on the task order related to Undergrounding District 1A due to the location of their residences in the project area; however, they were permitted to receive the informational update from staff. An introduction to the item was provided by Project Manager Boyd. City consultant Bridget Black with Utility Specialists was available to answer questions.
Council questions focused on the difference in the planned outreach/communications on the Tewa/10th Street pilot project and Utility Undergrounding Districts 1A and X1A projects; cost estimates per linear foot; estimated project costs; required public bidding process; communications plan; and project timeline.
There were no public speakers for the item.
IT WAS MOVED BY COUNCILMEMBER GAASTERLAND, SECONDED BY COUNCILMEMBER DRUKER TO APPROVE A $67,100 TASK ORDER AMENDMENT (ATTACHMENT B) WITH UTILITY SPECIALISTS SOUTHWEST, INC. FOR ADDITIONAL PRE-CONSTRUCTION SERVICES FOR THE UTILITY UNDERGROUNDING DISTRICT X1A (CREST CANYON) PROJECT AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE TASK ORDER AMENDMENT. (VOTE 5-0) Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
IT WAS MOVED BY COUNCILMEMBER WORDEN, SECONDED BY MAYOR MARTINEZ TO APPROVE A $32,800 TASK ORDER AMENDMENT (ATTACHMENT A) WITH UTILITY SPECIALISTS SOUTHWEST, INC. FOR ADDITIONAL PRE-CONSTRUCTION SERVICES FOR THE UTILITY UNDERGROUNDING DISTRICT 1A (STRATFORD COURT SOUTH) PROJECT AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE TASK ORDER AMENDMENT. (VOTE 3-0-2 WITH COUNCILMEMBERS DRUKER AND GAASTERLAND RECUSED.)
Ayes: Mayor Martinez, Deputy Mayor Quirk, and Councilmember Worden; Noes: 0; Absent: 0; Abstain: Councilmembers Druker and Gaasterland (recused).
ITEM 12: ADOPTION OF THE 2024 CITY COUNCIL MEETING SCHEDULE (CLERK’S FILE NO. 401-1)
This item was not heard by the City Council and was moved to the November 13, 2023, City Council meeting for consideration.
EXTENSION OF CITY COUNCIL MEETING PAST 10:00 P.M.
14 November 13, 2023 Item 02
City Council Regular Minutes
October 16, 2023
IT WAS MOVED BY COUNCILMEMBER WORDEN TO EXTEND THE MEETING UTIL 10:15 P.M.
MAYOR MARTINEZ SECONDED THE MOTION AND INTRODUCED A FRIENDLY AMENDMENT TO EXTEND THE MEETING UNTIL THE COMPLETION OF ITEM 13, WHICH COUNCILMEMBER WORDEN ACCEPTED. (VOTE 5-0)
Ayes: Mayor Martinez, and Councilmembers Druker, Gaasterland and Worden; Noes: 0; Absent: 0; Abstain: 0.
ITEM 13: COUNCIL DISCUSSION REGARDING EXPECTATIONS FOR COUNCILMEMBER
COMMUNICATIONS RELATED TO PUBLIC EXPRESSION OF PERSONAL VIEWS (CLERK’S FILE NO. 401-1, 1506-1)
A presentation was provided by Councilmembers Druker and Gaasterland.
Mayor Martinez opened the item to public comment and Clive Freeman spoke.
Council discussion focused on the expectations of Councilmembers related to their public expression of personal views and the critical importance of disclosing when you are speaking as an individual and not on behalf of the City Council.
IT WAS MOVED BY COUNCILMEMBER WORDEN, SECONDED BY MAYOR MARTINEZ TO
AUTHORIZE COUNCILMEMBERS DRUKER AND GAASTERLAND TO SEND A CLARIFICATION LETTER TO SANDAG AND FOR THEM TO WORK WITH STAFF TO BRING BACK A POLICY. (VOTE 4-1 WITH DEPUTY MAYOR QUIRK OPPOSED)
Ayes: Mayor Martinez, and Councilmembers Druker, Gaasterland and Worden; Noes: Deputy Mayor Quirk; Absent: 0; Abstain: 0.
ADJOURNMENT
Mayor Martinez adjourned the meeting at 10:15 p.m.
Sarah Krietor, Administrative Services Manager/
City Clerk
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City of Del Mar
Agenda Report
TO: Honorable Mayor and City Council Members
FROM: Michael Luna, Special Projects & Programs Manager Ashley Jones, City Manager
DATE: November 13, 2023
SUBJECT: Lease Agreement with the North County Transit District for Parcel 299-100- 33-00 (Trailhead Parking Lot)
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council approve a ten-year lease agreement with the North County Transit District (NCTD) for Parcel 299-100-3300 (Trailhead Parking Lot) (Attachment A); authorize the City Manager to execute the Lease Agreement; and amend the Fiscal Year (FY) 2023-2024 Operating and Capital Budget as described in the Fiscal Impact Section of this report.
DISCUSSION/ANALYSIS:
The parking lot at the northeast corner of San Dieguito Drive and Jimmy Durante Boulevard consists of a portion of City-owned property and property owned by NCTD. The site was vacated by the previous tenant in 2010 and leased by NCTD to the City in 2013. The parcel has a gross lot area of 29,280 square feet, of which about 4,000 square feet is within the San Dieguito River. With NCTD’s permission, the City made improvements to the parcel with the addition of interpretive signage, twenty-nine (29) defined parking spaces (which includes two ADA spaces), and the installation of a park-pay-and-display machine to provide paid public parking for access to the San Dieguito Lagoon and Coast to Crest Trail. Revenue generated from the paid parking is shared between the City of Del Mar and NCTD.
The City Council approved the current ten-year lease agreement with NCTD on June 3, 2013, through Resolution 2013-30. On September 1, 2023, the City Manager executed a one-time amendment extending the lease an additional three (3) months to negotiate a new lease as requested by NCTD pursuant to NCTD Board Policy No. 11 Real Estate (Attachment B). The amended lease will expire on November 30, 2023.
The City desires to provide continued access to the San Dieguito Lagoon and Coast to Crest Trail through the walkway along San Dieguito Road and provide public parking in the area.
The parking meter revenue generated over the past ten years has increased significantly with recent development in the area, which has benefited both parties. NCTD has agreed to continue to lease its parcel at the corner of San Dieguito Drive and Jimmy Durante Boulevard for public parking through a new ten-year lease agreement with the City. ________________________________________________________________________________________________________ City Council Action:
1 November 13, 2023 Item 05
City Council Agenda Report
Lease Agreement for Parcel 299-100-3300 (Trailhead Parking Lot) November 13, 2023
Over the last few months, City and NCTD staff have negotiated a fair market lease for the City’s continued use of the Trailhead Parking Lot, the key deal points for which are summarized in Attachment B. The initial annual rent will start at $41,040 and be increased on July 1 annually by 3% or Consumer Price Index (CPI), whichever is greater. The cost of annual rent will be credited back to the City through a reduction in the shared parking revenue to be paid to NCTD, as well as a reduction to revenues for the City’s administrative costs related to parking enforcement and processing citations.
The terms and conditions of the newly proposed lease are substantially the same as the current lease agreement. Consistent with the terms of the current lease, the new proposed lease provides that the gross parking revenue (less City operating/maintenance costs) is shared equally between the City and NCTD. Currently, the gross revenue generated from the NCTD parking lot totals approximately $200,000 annually, of which the City retains approximately $100,000 as its share of the gross revenue, along with 20% of the gross revenues for costs related to administration ($40,000) and a credit back to the City of $41,010 related to rent. A breakdown of how the revenues are distributed is included in Exhibit C to the Lease Agreement (Attachment A). Although the annual rent has increased to the current market rate, as required by NCTD Board Policy No. 11 (Attachment C), the new revenue share structure nets the City approximately the same annual revenue as in the previous lease.
FISCAL IMPACT:
Approval of the lease would require a budget adjustment in the Fiscal Year 2023-2024 Operating and Capital Budget to cover the cost of the rent for the initial year as follows:
PROGRAM FUND ACCOUNT AMOUNT
Property/Equipment Rental General Fund 01.5632.3600 $41,040 Revenues for the current and upcoming fiscal year are already included in the approved budget. Staff will include the rental cost for Fiscal Year 2024-2025 in the Budget Update report that will be presented to the City Council in June 2024, and will include subsequent rent costs for the remaining years of the lease in future proposed budgets.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item that is unrelated to the City Council Goals and Priorities.
ATTACHMENTS:
Attachment A – Lease Agreement with NCTD
Attachment B – Key Lease Deal Points
Attachment C – NCTD Board Policy No. 11 Real Estate
2 November 13, 2023 Item 05
REAL PROPERTY LEASE
This Lease Agreement (“Lease”) is made and entered into as of 1st day of December, 2023 (“Effective Date”), by and between the NORTH COUNTY TRANSIT DISTRICT, a public agency existing under the laws of the State of California, pursuant to California Public Utility Code sections 125000, et seq. (“NCTD” or “Lessor”) and CITY OF DEL MAR (“Lessee”), a charter city and municipal corporation (hereinafter referred to as the “Parties”).
ARTICLE 1 – SUMMARY OF BASIC LEASE PROVISIONS
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1. Lessor: NORTH COUNTY TRANSIT DISTRICT
Lessor’s Address for Notices:
Real Estate Department
810 Mission Avenue
Oceanside, CA 92054
1.2. Lessee: CITY OF DEL MAR
Lessee’s Address for Notices:
City Manager’s Office
1050 Camino Del Mar
Del Mar, CA 92014
1.3. Leased Property. Assessors Parcel Number (APN) 299-100-33-00 located at the northeast intersection of Jimmy Durante Boulevard and San Dieguito Drive located in the City of Del Mar, County of San Diego, State of California, consisting of approximately 29,490 square feet, more or less, as defined in Exhibit "A" hereto (the "Property").
1.4.Permitted Use. Lessee shall use the Property for the purpose of public parking for trails and the Del Mar Fairground, along with public access to scenic lagoon views. NCTD and Lessee agree that the primary purpose of the Property will be to increase public access to the San Dieguito Lagoon and the Coast to Crest Trail, and that Lessee is under no obligation to maximize the revenue received from parking operations.
1.5. Term. Rental of the Property shall be for a nine (9) year and seven (7) month term commencing on December 1, 2023 ("Commencement Date") and ending June 30, 2033 ("Expiration Date").
1.6. Annual Rent. The Annual Rent in the amount of $41,040 per year, payable within thirty (30) days of the first day of each fiscal year (July 1), pursuant to Section 4.1 245.5-0923-PK-DM 1
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(“Annual Rent”). Annual Rent for the first year (July 1, 2023- June 30, 2024) shall be paid within 30 days of the Effective Date.
1.7. Security Deposit. No Security Deposit is required.
1.8. Annual Rent Increase. Annual Rent will be increased annually starting on July 1, 2024, and each July 1 thereafter (“Adjustment Date”) by 3.0% or Consumer Price Index for All Urban Consumers, U.S. All items, 1982-84=100 (“CPI”), whichever is greater. On July 1 (“Adjustment Date”), the Annual Rent then in effect shall be multiplied by a fraction the numerator of which shall be the Index published in the two (2) months prior to the Adjustment Date ("Adjustment Index") and the denominator of which shall be the Index published two (2) months prior to the Effective Date, being one (1) year after the Adjustment Index ("Base Index"). The sum so calculated shall constitute the new monthly rent beginning on the Anniversary Date. In no case shall the adjusted Annual Rent be less than the Annual Rent in effect immediately prior to the Adjustment Date.
1.9. Shared Parking Revenue. NCTD shall be paid annually fifty-percent (50%) of the Gross Parking Revenue earned from parking operations for each fiscal year (July 1 - June 30) by Lessee (“Shared Parking Revenue”) less Annual Rent and Lessee Administration Fee. “Gross Parking Revenue” is defined as meter revenue and citation revenue collection at the Property. The “Lessee Administration Fee” takes into account the Lessee’s direct administrative costs for parking meter revenue collection and processing, parking enforcement, and maintenance related only to the parking operations on the Property and shall be twenty-percent (20%) of the Gross Parking Revenue collected from parking operations at the Property by Lessee. “Net Revenue” is defined as Gross Parking Revenue collected less the Annual Rent paid each year by Lessee and less the Lessee Administration Fee. In the event the NCTD Net Revenue from Shared Parking Revenue is less than the Annual Rent, the Lessee shall not be required to pay anything additional to NCTD. Shared Parking Revenue shall be paid within onehundred and twenty (120) days of the close of Lessee’s fiscal year and shall include documentation that supports the Gross Revenue collected as well as the Lessee Administration Fee and deduction of Annual Rent. Example of this Calculation is shown in Exhibit “C” attached hereto.
1.10.Utilities and Services Provided by NCTD. Pursuant to the terms set forth in Article 11, Lessee shall be responsible for the payment of all utilities and services.
1.11. Attachments. Attachments A through C constitute a part of this Lease as though fully set forth herein.
ARTICLE 2 – PROPERTY
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2. Property. NCTD leases to Lessee and Lessee leases from NCTD the Property for the term, at the rental, and upon all of the conditions set forth in this Lease.
2.1.Acceptance of Property. Lessee accepts the Property in its present physical "as-is" condition, and agrees to make no demands upon NCTD for any improvements or alterations. By signing this Lease, Lessee represents and warrants that Lessee has independently inspected the Property and the area immediately surrounding and made all investigations, tests, and observations necessary to satisfy Lessee as to the condition of the Property, zoning and land use laws, regulations, and ordinances affecting the Property, and all of the conditions, restrictions, encumbrances, and other matters of record relating to the Property. Lessee agrees that Lessee is relying solely on Lessee's independent inspection and that NCTD has made no warranty or representation with regard to the Property except as expressly set forth in this Lease. NCTD shall not be responsible for any latent defect or change in condition in the Property and Lessee's obligations under this Lease shall not be diminished on account of any defect in the Property, any change of condition, or any damages occurring on the Property except as expressly provided in this Lease. Lessee hereby releases NCTD from all future claims, actions, or demands that Lessee may have or may hereinafter have, known and unknown, in any way relating to the quality, fitness, or condition of the Property, and Lessee specifically waives all rights under California Civil Code section 1542, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Lessee Initial: __________
2.2.Right to Enter. NCTD and NCTD's agents shall have the right to enter the Property at reasonable times for the purpose of inspecting the Property, performing any services required of NCTD, showing the Property to prospective purchasers, lenders, or Lessees, taking such safety measures as NCTD may reasonably deem necessary or desirable, posting notices of non-responsibility, or making repairs to NCTD's adjacent property and railroad right-of-way, and erecting, using and maintaining of utilities, services, pipes and conduits through the Property and/or other property as long as there is no material adverse effect to Lessee's use of the Property. NCTD will repair any physical damage to the permanent improvements located on the Property resulting from NCTD exercising the rights reserved in this section. Unless the entry is the result of an emergency threatening life, health, or property, NCTD shall first give twenty-four (24) hours notice to Lessee.
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2.3.Mineral and Water Rights. Excepted and reserved from the Property are all minerals and mineral rights, water and water rights of every kind or nature located upon or below the surface of the Property.
2.4.Quiet Possession. NCTD covenants that, subject to the limitations expressly set forth in this Lease, Lessee, upon Lessee's timely payment of the Annual Rent and Shared Property Revenue and performance of Lessee's covenants and obligations under this Lease, may quietly have, hold and enjoy the Property during the term of this Lease, without hindrance or interruption by NCTD, subject to NCTD's right to enter upon the Property as provided herein.
2.5.Representation. NCTD has made no representations or warranties, express or implied, with respect to the Property and Lessee shall acquire no rights, easements or licenses in or to the Property by implication or otherwise except as expressly set forth in this Lease. NCTD represents that it has full authority and ability to enter into this Lease.
2.6.Easements. NCTD reserves to itself the right, from time to time, to grant such easements, rights and dedications that NCTD deems necessary or desirable, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Property by Lessee. Lessee shall sign any of the aforementioned documents upon request of NCTD and failure to do so shall constitute a material default of this Lease by Lessee without the need for further notice to Lessee.
2.7.Temporary Use. This Lease and the use of the Property for public parking is temporary in nature. This Lease does not convey any permanent interest in any real property, nor does it confer any right or obligation to any third party, including but not limited to, public access rights under any law, regulation or ordinance of any local, state or federal agency. Should any third party assert such a claim of right, title or interest, Lessee shall defend and indemnify NCTD pursuant to Section 8 of this Lease. Lessee expressly agrees and understands that any removal or relocation of any improvements installed under this Lease, including but not limited to parking, shall be at the Lessee’s sole expense, cost and risk.
ARTICLE 3 – TERM
3. Term. The term and Commencement Date of this Lease shall be as specified in Article
1.5 of the Basic Lease Provisions.
3.1.Renewal Option. The Lease may not be renewed.
3.2.Termination Option. NCTD or Lessee shall have the right to terminate this Lease with thirty (30) days written notice.
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ARTICLE 4 – RENT
4. Rent.
4.1.Annual Rent. Lessee shall pay to NCTD the Annual Rent for the Property within 30 days of the first day of each fiscal year (July 1), with the exception of the initial Annual Rent as set forth in Article 1.6 of the Basic Lease Provisions, without deduction, setoff, prior notice, or demand. Annual Rent for any partial year shall be prorated at the rate of 1/30th of the Annual Rent per day. Rent shall be payable in lawful money of the United States.
4.2.Additional Rent. All costs and expenses which Lessee assumes or agrees to pay under this Lease, other than the Annual Rent, shall be deemed to be "Additional Rent". If Lessee defaults in the making of any payment required under this Lease, other than the payment of Annual Rent, or defaults in performing any obligation under this Lease that can be performed by the expenditure of money, NCTD may, without obligation to do so, make such payment or expenditure. The amount of such payment or expenditure by NCTD shall be payable by Lessee as Additional Rent upon demand by NCTD. The Annual Rent and Additional Rent are collectively called "Rent."
4.3.Market Reset. Notwithstanding Article 1.7, the Annual Rent is subject to adjustment on the fifth Anniversary Date (July 1, 2028) and each fifth anniversary thereafter (“Reset Date”) to an amount determined by appraisal to be the current fair market value. The cost of the appraisal shall be borne by NCTD. If the cost of an appraisal is not justified by the anticipated compensation, NCTD may choose to use an alternative method to establish the fair market value. In no event shall the adjusted Annual Rent be lower than the Annual Rent in existence immediately preceding the Reset Date. In the event that NCTD elects to adjust the Annual Rent in accordance with this Article 4.3, NCTD shall give Lessee notice of the adjustment not less than thirty (30) days prior to the Reset Date.
4.4.Late Charge. Lessee acknowledges that late payment by Lessee to NCTD of Annual Rent, Additional Rent, Shared Parking Revenue, or other sums due under this Lease will cause NCTD to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on NCTD. Accordingly, if any installment of Annual Rent, Additional Rent, Shared Parking Revenue, or any other sum due from Lessee is not received by NCTD or NCTD's designee within ten (10) days after such amount is due, then, without any requirement for notice from NCTD, Lessee shall pay to NCTD a late charge equal to ten percent (10%) of such overdue amount. The Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs NCTD will incur by reason of late payment by Lessee.
Acceptance of such late charge by NCTD shall in no event constitute a waiver of 5 243.5-1223-PK-DM
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Lessee's default with respect to such overdue amount, nor prevent NCTD from exercising any of the other rights and remedies granted under this Lease or at law.
4.5.Payment of Rent. All Rent shall be made payable to North County Transit District at 810 Mission Avenue, Oceanside, California 92054; provided that NCTD may by written notice to Lessee direct that Rent be made payable to NCTD at such address as NCTD may designate in such notice, or to such other person as NCTD may designate at such address as NCTD may designate in such notice.
4.6.Failure to Pay Rent. Failure to pay Rent shall be a non-curable event of default without the necessity of any notice or cure period provided in Article 13. At NCTD’s sole discretion, immediately following such a non-curable event of default, NCTD may terminate the Lease and seek any remedy available by this Lease or at law.
If Lessee tenders a check, which is dishonored by a banking institution, than the Lessee shall tender cash or cashier’s check only for all future payments, which shall continue until such time as written consent is obtained from NCTD. In addition, Lessee shall be liable in the sum of $25 for each dishonored check that is returned to NCTD.
ARTICLE 5 – PERMITTED USE
5. Use.
5.1.Permitted Use. The Property shall be used and occupied only for the purpose set forth in Article 1.4 of the Basic Lease Provisions and for no other purpose.
5.2.Compliance with Laws. Lessee shall comply with all applicable laws and regulations concerning the Property or Lessee's use of the Property, including, without limitation, the obligation at Lessee's cost to alter, maintain, or restore the Property, or to construct improvements in or to the Property, in compliance and conformity with all laws and government requirements relating to the condition, use, or occupancy of the Property, or construction or land disturbance activities on the Property, during the term of this Lease, whether foreseen or unforeseen, regardless of cost, and regardless of when during the term the work is required.
5.3.Hazardous Materials. Lessee shall not cause or permit any Hazardous Material to be used, stored, transported, generated, or disposed in or about the Property by Lessee, Lessee's agents, employees, contractors, sublessee, licensees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by NCTD or any local governmental entity, the State of California, or the United States Government under any law, regulation or ordinance regulating or controlling any Hazardous Material (the "Hazardous Materials Laws"), including, without limitation, any material, or substance which is: (i) defined as a "hazardous waste," "extremely 6 243.5-1223-PK-DM
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hazardous waste" or "restricted hazardous waste" under California Health and Safety Code §§ 25115, 25117 or 25122.7, or listed pursuant to California Health and Safety Code § 25140, (ii) defined as a "hazardous substance" under California Health and Safety Code § 25316, (iii) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under California Health and Safety Code § 25501 (iv) defined as a "biohazardous waste" under California Health and Safety Code § 117635, (v) petroleum or petroleum product, (vi) asbestos, (vii) designated as a "hazardous substance" pursuant to § 311 of the Federal Water Pollution Control Act, 33 U.S.C. 1251. et seq. (33 U.S.C. § 1317), (viii) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903), or (ix) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601).
5.3.1.Lessee shall immediately notify NCTD in writing of: (i) any enforcement, cleanup, removal or other governmental, or regulatory action instituted, completed or threatened pursuant to any Hazardous Materials Laws; (ii) any claim made or threatened by any person against Lessee, any sublessee, or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from or claimed to result from any Hazardous Materials; and (iii) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials in or removed from the Property, including any complaints, notices, warnings, or asserted violations in connection therewith. Lessee shall also supply to NCTD as promptly as possible, and in any event within five (5) business days after Lessee first receives or sends the same, with copies of all claims, reports, complaints, notices, warnings, or asserted violations, relating in any way to the Property or Lessee's use thereof. Lessee shall promptly deliver to NCTD copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Property.
5.3.2.Lessee shall indemnify, defend (by counsel reasonably acceptable to NCTD), protect, and hold NCTD and each of NCTD's employees, agents, attorneys, successors and assigns, free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses, or expenses (including attorneys' fees), or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by: (i) the presence in, on, under or about the Property or discharge in or from the Property, of any Hazardous Materials; (ii) the use, analysis, storage, transportation, disposal, release, threatened release, discharge or generation of Hazardous Materials to, in, on, under, about, or from the Property by Lessee; or (iii) Lessee's failure to comply with any Hazardous Materials Law. Lessee's obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification, or 7 243.5-1223-PK-DM
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decontamination of the Property, or the preparation and implementation of any closure, remedial action, or other required plans in connection therewith, and shall survive the expiration or earlier termination of the Lease. For purposes of the release and indemnity provisions hereof, any acts or omissions of Lessee, or by employees, agents, sublessee, assignees, contractors, or subcontractors of Lessee or others acting for or on behalf of Lessee (whether or not they are negligent, intentional, willful, or unlawful) shall be strictly attributable to Lessee.
5.3.3.Upon expiration or earlier termination of the Lease, Lessee shall cause all Hazardous Materials to be removed from the Property and transported for use, storage or disposal in accordance with and compliance with all applicable Hazardous Materials Laws. Lessee shall not take any remedial action in response to the presence of any Hazardous Materials in or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any claims relating to any Hazardous Materials in any way connected with the Property, without first notifying NCTD of Lessee's intention to do so and affording NCTD ample opportunity to appear, intervene, or otherwise appropriately assert and protect NCTD's interest with respect thereto.
5.4.Storm Water Pollution Prevention: Compliance with Construction General Permit for the Property.
5.4.1. If coverage under the Construction General Permit and/or NCTD MS4 Program requirements (as defined in this Article 6.4.1) pursuant to applicable NCTD, local, state, and federal ordinances, laws, rules and regulations is required, Lessee shall prepare, implement and monitor a Storm Water Pollution Prevention Plan ("SWPPP") that is consistent with the current NCTD SWPPP template and is in compliance with the current Construction General Permit for the purpose of preventing, among other things, the discharge of pollutants into receiving waters. This includes elimination of non-storm water pollution discharges such as improper dumping, spills or leakage from storage tanks or transfer areas. If coverage under the Construction General Permit is required, in addition to the requirements set forth in Article 7.2, Lessee shall not perform or cause to be performed any construction or demolition activities on the Property until Lessee obtains a Waste Dischargers Identification number, as that term is defined in the Construction General Permit. For purposes of this Article 6.4, “Construction General Permit” shall mean the State Water Resources Control Board (“SWRCB”) National Pollutant Discharge Elimination System (“NPDES”) General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction and Land Disturbance Activities, as it may be amended or superseded, (currently Order No. 2012-0006-DWQ); and MS4 Program shall mean the RWQCB issued Phase II Small Municipal Separate Storm Sewer System (“MS4”) 8 243.5-1223-PK-DM
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Program (currently Order No. 2013-0001-DWQ) as it may be amended or superseded.
5.4.2. The Lessee shall prepare, implement and monitor an Erosion and Sediment Control Plan ("ESCP") consistent with the current NCTD ESCP template for the purpose of preventing the discharge of pollutants into receiving waters for all construction or demolition activities performed or caused to be performed by Lessee on the Property for activities not requiring coverage under the Construction General Permit, industrial general permit or an individual National Pollutant Discharge Elimination System permit, including activities that result in a total land disturbance of less than one acre that are not part of a larger common plan of development or sale. This includes elimination of non-storm water pollution discharges such as improper dumping, spills or leakage from storage tanks or transfer areas.
5.4.3. Without limiting the provisions set forth in Articles 6.2, 7.2 and Article 8, the Lessee shall comply with the NCTD Storm Water Management Program and all NCTD, local, state and federal ordinances, laws, rules and regulations governing storm water discharges, including but not limited to those associated with construction and demolition activities such as clearing, excavating, grading, demolition and other land disturbances.
5.4.4. The Lessee shall pay and be responsible for all fees, as applicable and as required by SWRCB, during the term of this Lease.
5.4.5. The Lessee shall submit all SWRCB required documentation, as applicable and including but not limited to Permit Registration Documents, as that term is defined in the Construction General Permit, to the SWRCB through the SWRCB SMARTS online system and shall provide a copy of such documentation and proof of submittal to NCTD.
5.4.6. Lessor may approve or disapprove any provision in the Permit Registration Documents or ESCP or proposed work in Lessor’s sole and absolute discretion, as set forth further in Article 7.2, and Lessor may require such changes or impose such conditions as Lessor, in its sole and absolute discretion, deems necessary or appropriate. Without limiting the provisions set forth further in this Lease, including but not limited to Article
7.2.1 and Article 8, Lessor and Lessor's employees, consultants, and agents assume no responsibility for and make no representations or warranties, express or implied, as to the Permit Registration Documents or ESCP or Lessee’s compliance with the same, including but not limited to the design, condition, workmanship, or adequacy of the drawings, specifications, construction documents, Permit Registration Documents, ESCP or work. No review, comments, requirements, or inspection shall relieve Lessee or Lessee's engineers, contractors, subcontractors, or 9 243.5-1223-PK-DM
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consultants from its responsibility under the Construction General Permit, including but not limited to errors or omissions in the drawings, specifications, application, construction documents, Permit Registration Documents or ESCP, or for the quality or adequacy of the work.
5.4.7. As required by NCTD’s Phase II MS4 Permit (Order No. 2013-0001- DWQ) (“MS4 Permit”), NCTD may conduct periodic water sampling associated with any drainage facility installed by Lessee within the Easement Area. Lessee shall be required to reimburse NCTD for costs associated with collection, sampling and reporting. NCTD may require Lessee to perform corrective actions, at Lessee's sole cost and expense, in order to meet the requirements of the MS4 Permit.
5.5.Storm Water Pollution Prevention: Compliance with Individual or Industrial National Pollutant Discharge Elimination System Permit for the Property.
5.5.1. If coverage under an industrial general permit or individual National Pollutant Discharge Elimination System (“NPDES”) permit is required pursuant to applicable NCTD, local, state, and federal ordinances, laws, rules and regulations, Lessee shall obtain such coverage in order to lawfully discharge storm water associated with its activity on the Property, prior to conducting any activity on the Property triggering such permit, and shall comply with the approved permit. Lessee shall submit to Lessor, for review and approval, a draft permit application. Lessor may approve or disapprove any provision or proposed work in Lessor’s sole and absolute discretion, as set forth further in Article 7.2, and Lessor may require such changes or impose such conditions as Lessor, in its sole and absolute discretion, deems necessary or appropriate. Without limiting the provisions set forth herein, including but not limited to Article 7.2.1 and Article 8, Lessor and Lessor's employees, consultants, and agents assume no responsibility for and make no representations or warranties, express or implied, as to the application or Lessee’s compliance with the permit, including but not limited to the design, condition, workmanship, or adequacy of the drawings, specifications, construction documents, application or work. No review, comments, requirements, or inspection shall relieve Lessee or Lessee's engineers, contractors, subcontractors, or consultants from its responsibility under the NPDES permit, including but not limited to errors or omissions in the drawings, specifications, application, or construction documents, or for the quality or adequacy of the work.
5.6.Rail-related Conditions of Use. Lessee shall not encroach within twenty-five (25) feet of any rail at any time. Lessee shall have no right to cross any rail to access the Property.
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ARTICLE 6 – MAINTENANCE, REPAIRS,
ALTERATIONS AND COMMON AREA SERVICES
6. Maintenance, Repairs, Alterations and Common Area Services.
6.1.Maintenance and Repairs. Lessee shall keep the Property in good condition and repair; and clean, sanitary, free of debris and graffiti. All graffiti will be removed within 24 hours of Lessee’s knowledge of the graffiti. Lessee shall store any garbage and debris in appropriate metal containers.
6.2.Alterations and Additions. Lessee shall not, without NCTD's prior written consent, make any alterations, improvements, additions, Utility Installations in, on or about the Property. "Utility Installation" means tower construction, power panels, electrical distribution systems, lighting fixtures, telephone and telecommunications wiring and equipment. At the termination or expiration of the term of this Lease, NCTD may require in its sole and absolute discretion, the removal of any or all of alterations, improvements, additions, or Utility Installations, (collectively, "Improvements"), and the restoration of the Property to its prior condition, at Lessee's expense.
6.2.1. Lessee shall deliver to NCTD drawings, specifications, and other construction documents for any proposed Improvements, including but not limited to documents as required pursuant to Articles 6.4 and 6.5, all sufficient for NCTD to determine the scope and nature of the proposed Improvements, for NCTD's review and approval to proceed with Improvements. NCTD shall not be liable for and Lessee expressly agrees to indemnify, defend and hold harmless NCTD for any claims made related to design or construction of Improvements in accordance with the Indemnification provision set forth in Article 8. In the event that NCTD approves proceeding with any proposed Improvements, Lessee shall make the Improvements in substantial compliance with the construction documents reviewed by NCTD and in compliance with all applicable federal, State, and local laws, regulations, ordinances, codes, rules, and requirements. Lessee shall obtain all necessary permits and approvals from the applicable governmental agencies and shall furnish a copy thereof to NCTD prior to the commencement of the work. Lessee shall use only a contractor approved by NCTD. NCTD may require Lessee to provide NCTD, at Lessee's sole cost and expense, a lien and completion bond in an amount equal to one and one-half times the estimated cost of such Improvements, to insure NCTD against any liability for mechanic's and materialmen's liens and to insure completion of the work. Should Lessee make any Improvements without the prior approval of NCTD, NCTD may, at any time during the term of this Lease, require Lessee remove any part or all of the same.
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6.2.2. Lessee shall carry out any construction, expansion and/or development of the Property in conformity with all applicable federal and state labor laws (including, without limitation, if applicable the requirement under California law to pay prevailing wages and to hire apprentices).
Lessee shall be solely responsible for determining and effectuating compliance with applicable laws, and NCTD makes no representation as to the applicability or non-applicability of the laws to any construction, expansion and/or development of the Property by Lessee. Lessee expressly acknowledges and agrees that NCTD has not previously represented to the Lessee or its contractor(s), in writing or otherwise, whether the construction, expansion and/or development of the Property is or is not a “public work” as defined by section 1720 of the Labor Code.
Lessee shall have the sole obligation to provide any and all disclosures or identification as required by Labor Code section 1781 and any other similar law, as the same may be amended from time to time, if applicable.
6.2.3. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use in the Property. Lessee shall not permit any mechanics' or other liens to be filed against the Property nor against Lessee's Leasehold Interest. If any such lien is filed, Lessee shall cause the lien to be discharged of record, either by payment of the claim or posting and recording the bond contemplated by Civil Code section 3143 or any successor statute, within twenty (20) days after demand by NCTD. Lessee shall indemnify, hold harmless, and defend NCTD from and against any such lien.
6.2.4. Lessee shall give NCTD not less than ten (10) days' notice prior to the commencement of any work in the Property by Lessee, and NCTD shall have the right to post notices of non-responsibility in or on the Property as provided by law.
6.2.5. Lessee shall reimburse NCTD for all cost incurred as a result of any Improvements including but not limited to plan design review, review of documents pursuant to Articles 6.4 and 6.5, furnishing of any security, flag protection, inspectors, and for performing any work, during the installation of any Improvements.
ARTICLE 7 – EXCULPATION, INSURANCE, AND INDEMNITY
7. Exculpation, Insurance, and Indemnity.
7.1.Exculpation of NCTD. NCTD shall not be liable to Lessee for any damage to Lessee or Lessee's property from any cause. Lessee waives all claims against NCTD for damage to person or property arising for any reason, except that NCTD shall be liable to Lessee for damage to Lessee resulting from the sole negligence or willful misconduct of NCTD, its Board of Directors, officers, employees, 12 243.5-1223-PK-DM
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consultants, contractors and agents. Lessee acknowledges that railroad tracks are located adjacent to the Property and that operation of trains over the tracks does and will produce vibrations and noise levels which may be considered objectionable by Lessee or Lessee's employees, agents, sub-lessees, licensees, or invitees. With knowledge and understanding of these facts, Lessee agrees that no legal action or complaint of any kind whatsoever shall be instituted by Lessee or on Lessee's behalf as result of the vibrations or noise or as the result of the use of the railroad track in general, whether by NCTD or any other railroad operation on the tracks.
7.2.Indemnity. NCTD shall not be liable for, and Lessee shall indemnify, defend and hold NCTD, its Board of Directors, officers, employees, consultants, contractors and agents harmless from and against any and all liabilities or claim of liability, losses, damages, expenses, demands, judgments, fines, mechanics liens or other liens, labor disputes, charges or costs, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, whether directly or indirectly arising from or connected with an act or omission of Lessee, or an agent, invitee, guest, employee, or anyone in, on, or about the Property, with respect to the Property or the operations or services under this Lease, including, but not limited to: bodily injury, death, personal injury, or property damage caused by negligence, creation or maintenance of a dangerous condition of property, breach of express or implied warranty of product, defectiveness of product, or intentional infliction of harm, including any workers' compensation suits, liability, or expense, arising from or connected with services performed by on behalf of Lessee by any person pursuant to this Lease; nonpayment for labor, materials, or power, performed on, or furnished or contributed to the Property; infringement of a patent or copyright or disclosure of a trade secret; and violation of state and federal antitrust laws; provided, however, that nothing herein shall relieve any party indemnified hereunder from liability to the extent that such liability arises from such party’s sole established gross negligence or willful misconduct.
This indemnity shall not require payment of a claim by NCTD or any of its Board of Directors, officers, employees, consultants, contractors or agents as a condition precedent to NCTD’s recovery hereunder. Lessee’s obligation to indemnify hereunder shall not be restricted to insurance proceeds, if any, received by NCTD and its Board of Directors, officers, employees, consultants, contractors or agents.
Nothing contained herein shall prohibit NCTD, in its sole discretion, from participating in the defense of any demand, claim, action, proceeding, or litigation.
In no event shall NCTD’s participation in the defense of any demand claim, action, proceeding, or litigation affect the obligations imposed upon Lessee herein.
This and all other Lessee indemnities shall survive the termination of this Lease and shall remain in effect for as long as the underlying claim or action remains viable.
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7.3.Insurance. Without limiting Lessee’s indemnification obligations to NCTD under this Lease, Lessee shall provide and maintain during the term and for other period required in this Lease, at its sole expense, insurance in the amounts and form specified in Exhibit B, INSURANCE REQUIREMENTS. Lessee shall name NCTD as an additional insured on each of the aforementioned insurance policies and the policies shall state that they are primary and that any policies NCTD maintains shall be noncontributory. Lessee shall provide NCTD with written certificates of insurance evidencing such coverage prior to the Effective Date. Said policies shall expressly provide that the policies shall not be canceled or altered without at least thirty (30) days prior written notice to NCTD. Said policies shall be with insurance companies with an A.M. Best rating of AVII or better. Each policy limit herein shall be increased by Lessee, upon request by NCTD, to the amount NCTD increases its policy limits for other contracts at Lessee’s sole cost.
NCTD takes no responsibility for the protection of Lessee’s property from acts of vandalism by third parties. The insurance requirements may be changed by NCTD upon giving of notice to Lessee; provided that the requirements set forth in Exhibit B shall be the minimum insurance requirements during the term.
ARTICLE 8 – DAMAGE OR DESTRUCTION
8. Damage or Destruction. If at any time during the term of this Lease the Property is damaged or destroyed then, unless the damage is caused by the negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), NCTD may at NCTD's option either: (i) repair such damage as soon as reasonably possible at NCTD's expense, in which event this Lease shall continue in full force and effect, or (ii) give written notice to Lessee within thirty (30) days after the date of the occurrence of such damage of NCTD's intention to cancel and terminate this Lease as of the date of the occurrence of such damage, in which event this Lease shall terminate as of the date of the occurrence of such damage. In the event NCTD elects to repair or restore the Property, and any part of the Property is not usable for the period during which such damage, repair, or restoration continues, then Annual Rent shall be abated, provided: (1) the damage was not the result of the negligence of Lessee, and (2) such abatement shall only be to the extent the operation and profitability of Lessee's business as operated from the Property is adversely affected.
Except for the abatement of Annual Rent, if any, Lessee shall have no claim against NCTD for any damage suffered by reason of any such damage, repair or restoration.
NCTD and Lessee waive the provisions of any statutes which relate to termination of leases when leased property is destroyed and agree that such event shall be governed by the terms of this Lease.
ARTICLE 9 – TAXES AND ASSESSMENTS
9. Taxes and Assessments. Lessee shall pay before delinquency any and all real and personal property taxes, general and special assessments, license fees, and other charges of any description including, without limitation, any possessory interest tax, 14 243.5-1223-PK-DM
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that are levied and assessed from the commencement of this Lease until the expiration or termination of this Lease against the Property, Lessee's possessory interest in the Property, Lessee's leasehold estate, any subleasehold estate, Improvements located on the Property, or personal property installed or located in or on the Property or Improvements (collectively, "Taxes and Assessments"), to the full extent of the installments of the Taxes and Assessments falling due during the term of this Lease. All payments of Taxes and Assessments shall be made directly to the taxing or charging authority. Lessee shall provide receipts or other proof of payment of the Taxes and Assessments to NCTD prior to the date that the Taxes and Assessments become delinquent.
9.1. Lessee's Right to Contest Taxes and Assessments. Lessee at its sole cost shall have the right, at any time, to seek a reduction in the assessed valuation of the Property or to contest any Taxes and Assessments that are to be paid by Lessee. If Lessee seeks a reduction of or contests the Taxes and Assessments, the failure on Lessee's part to pay the Taxes and Assessments shall not constitute a default as long as Lessee, before the delinquency date, furnishes to NCTD a surety bond issued by an insurance company qualified to do business in California in an amount equal to one hundred twenty-five percent (125%) of the total amount of Taxes and Assessments in dispute. The bond shall hold NCTD and the Property harmless from any damage arising out of the proceeding or contest and shall insure the payment of any judgment that may be rendered.
NCTD shall not be required to join in any proceeding or contest brought by Lessee unless the provisions of any law require that the proceeding or contest be brought by or in the name of NCTD. In that case NCTD shall join in the proceeding or contest or permit it to be brought in NCTD's name as long as NCTD is not required to bear any cost. Lessee, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, together with all costs, charges, interest, and penalties incidental to the decision or judgment.
9.2. Transfer Taxes. If a transfer tax is payable to any governmental agency or agencies as a result of this Lease, Lessee shall pay such transfer tax directly to the taxing authority or authorities when it is due.
9.3. Possessory Interest Tax Notice. Lessee acknowledges that NCTD has given notice to Lessee that the property interest created by this Lease may be subject to property taxation pursuant to Revenue and Taxation Code § 107.6 or other statutes, and that Lessee may be subject to the payment of property taxes levied on the possessory interest created by this Lease.
9.4. Indemnification. NCTD shall not be liable for, and Lessee shall indemnify, defend and hold NCTD and its Board of Directors, officers, employees, consultants, contractors and agents and the Property and any Improvements now or hereafter located on the Property free and harmless from any claims, demands, liabilities, judgments, fines, losses, damages, expenses, charges or 15 243.5-1223-PK-DM
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costs of any kind or character, including attorneys' fees and court costs, resulting from any Taxes and Assessments required by this Article to be paid by Lessee, and from all interest, penalties, and other sums imposed thereon, and from any sale or other proceeding to enforce collection of any Taxes and Assessments.
9.5. Payment by NCTD. Should Lessee fail to pay within the time specified in this Article any Taxes and Assessments required by this Article to be paid by Lessee, NCTD may, without notice to or demand on Lessee, pay, discharge, or adjust said Taxes and Assessments for the benefit of Lessee. In such event, Lessee shall reimburse NCTD pursuant to Article 4.2.
ARTICLE 10 – UTILITIES AND SERVICES
10.Utilities and Services. Except as set forth in Article 1.9 of the Basic Lease Provisions, Lessee shall arrange for and pay before delinquency all charges for utilities, including water, sewer, gas, electric, heat, air conditioning, light, telephone, and communications, and all garbage, landscaping, janitorial, security, and other services that are necessary or convenient for Lessee's use of the Property. Lessee hereby acknowledges that NCTD shall have no obligation whatsoever to provide guard service or other security measures for the benefit of the Property. Lessee assumes all responsibility for the protection of Lessee, its agents, and invitees and the property of Lessee and of Lessee's agents and invitees from acts of third parties.
ARTICLE 11 – ASSIGNMENT AND SUBLETTING
11.Assignment and Subletting.
11.1.NCTD's Consent Required. Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet or otherwise transfer or encumber all or any part of Lessee's interest in the Lease or in the Property, without NCTD's prior written consent. Any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void, and shall constitute a material default and breach of this Lease without the need for notice to Lessee under Article 13.1. "Transfer" within the meaning of this Article 12 shall include the transfer or transfers aggregating: (a) if Lessee is a corporation, more than twentyfive percent (25%) of the voting stock of such corporation, or (b) if Lessee is a partnership, more than twenty-five percent (25%) of the profit and loss participation in such partnership.
11.2.Lessee Affiliate. Notwithstanding the provisions of Article 12.1 hereof, Lessee may assign or sublet the Property, or any portion thereof, without NCTD's consent, to any corporation which controls, is controlled by or is under common control with Lessee, or to any corporation resulting from the merger or consolidation with Lessee, or to any person or entity which acquires all the assets of Lessee as a going concern of the business that is being conducted on the Property, all of which are referred to as "Lessee Affiliate," provided that before 16 243.5-1223-PK-DM
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such assignment shall be effective, (a) the proposed assignee shall assume, in full, the obligations of Lessee under this Lease and (b) NCTD shall be given written notice of such assignment and assumption. Any such assignment shall not, in any way, affect or limit the liability of Lessee under the terms of this Lease even if after such assignment or subletting the terms of this Lease are materially changed or altered without the consent of Lessee, the consent of whom shall not be necessary.
11.3.Terms and Conditions Applicable to Assignment and Subletting.
11.3.1. NCTD reserves the right to condition any approval to assign or sublet upon NCTD's determination that (a) the proposed assignee or sub-lessee will conduct a business on the Property of a quality substantially equal to that of Lessee, and (b) the proposed assignee or sub-lessee is at least as financially responsible as Lessee was at the time of the execution of this Lease or is of the date of such assignment or subletting, whichever is greater.
11.3.2. Regardless of NCTD's consent, no assignment or subletting shall release Lessee or Lessee's obligations hereunder or alter the primary liability of Lessee to pay the Rent, Shared Parking Revenue, and other sums due NCTD hereunder and to perform all other obligations to be performed by Lessee hereunder.
11.3.3. NCTD may accept Rent from any person other than Lessee pending approval or disapproval of such assignment.
11.3.4. Neither a delay in the approval or disapproval of such assignment or subletting, nor the acceptance of Rent, shall constitute a waiver or estoppel of NCTD's right to exercise its remedies for the breach of any of the terms of conditions of this Article 12 of this Lease.
11.3.5. If Lessee's obligations under this Lease have been guaranteed by third parties, then an assignment or sublease, and NCTD's consent thereto, shall not be effective unless the guarantors give their written consent to such assignment or sublease and the terms thereof.
11.3.6. The consent by NCTD to any assignment or subletting shall not constitute consent to any subsequent assignment or subletting by Lessee or to any subsequent or successive assignment or subletting by the sublessee. However, NCTD may consent to subsequent sublettings and assignments of the sublease or any amendments or modifications thereto without notifying Lessee or anyone else liable on the Lease or sublease and without obtaining their consent and such action shall not relieve such persons from liability under the this Lease or the sublease; however, such persons shall not be responsible to the extent any such amendment or 17 243.5-1223-PK-DM
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modification enlarges or increases the obligations of the Lessee or sublessee under this Lease or such sublease.
11.3.7. In the event of any default under this Lease, NCTD may proceed directly against Lessee, any guarantors, or anyone else responsible for the performance of this Lease, including the sub-lessee, without first exhausting NCTD's remedies against any other person or entity responsible therefor to NCTD, or any security held by NCTD or Lessee.
11.3.8. NCTD's written consent to any assignment or subletting of the Property by Lessee shall not constitute an acknowledgment that no default then exists under this Lease of the obligations to be performed by Lessee nor shall such consent be deemed a waiver of any then existing default, except as may be otherwise stated by NCTD at the time.
11.3.9. The discovery of the fact that any financial statement relied upon by NCTD in giving its consent to an assignment or subletting was materially false shall, at NCTD's election, render NCTD's consent null and void.
11.4.Additional Terms and Conditions Applicable to Subletting. Regardless of NCTD's consent, the following terms and conditions shall apply to any subletting by Lessee of all or any part of the Property and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein.
11.4.1. Lessee hereby assigns and transfers to NCTD all of Lessee's interest in all rentals and income arising from any sublease heretofore or hereafter made by Lessee, and NCTD may collect such Rent and income and apply same toward Lessee's obligations under this Lease; provided, however, that until a default shall occur in the performance of Lessee's obligations under this Lease, Lessee may receive, collect and enjoy the Rents accruing under such sublease. NCTD shall not, by reason of this or any other assignment of such sublease to NCTD nor by reason of the collection of the Rents from a sub-lessee, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations such sublessee under such sublease. Lessee hereby irrevocably authorizes and directs any such sub-lessee, upon receipt of a written notice from NCTD stating that a default exists in the performance of Lessee's obligations under this Lease, to pay to NCTD the Rents due and to become due under the sublease. Lessee agrees that such sub-lessee shall have the right to rely upon any such statement and request from NCTD, and that such sub-lessee shall pay such Rents to NCTD without any obligation or right to inquire as to whether such default exists and notwithstanding any notice from or claim from Lessee to the contrary. Lessee shall have no right or claim against the sub-lessee or NCTD for any such Rents so paid by the sub-lessee to NCTD. 18 243.5-1223-PK-DM
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11.4.2. No sublease entered into by Lessee shall be effective unless and until it has been approved in writing by NCTD. In entering into any sublease, Lessee shall use only such form of sublease as is satisfactory to NCTD, and once approved by NCTD, such sublease shall not be changed or modified without NCTD's prior written consent. Any sublease shall, by reason of entering into a sublease under this Lease, be deemed, for the benefit of NCTD, to have assumed and agreed to conform and comply with each and every obligation herein to be performed by Lessee other than such obligations as are contrary to and or inconsistent with provisions contained in a sublease to which NCTD has expressly consented in writing.
11.4.3. In the event Lessee shall default in the performance of its obligations under this Lease, NCTD at its option and without any obligations to do so, may require any sub-lessee to attorn to NCTD, in which event NCTD shall undertake the obligations of Lessee under such sublease from the time of the exercise of said option to the termination of such sublease; provided, however, NCTD shall not be liable for any prepaid Rents paid by such sub-lessee to Lessee or for any other prior defaults of Lessee under such sublease.
11.4.4. No sub-lessee shall further assign or sublet all or any part of the Property without NCTD's prior written consent.
11.5.NCTD's Expenses. In the event Lessee shall assign or sublet the Property or request the consent of NCTD to any assignment or subletting or if Lessee shall request the consent of NCTD for any act Lessee proposes to do then Lessee shall pay NCTD's processing fee and all reasonable or actual costs and expenses incurred in connection therewith, including attorneys', architects', engineers' or other consultants' fees.
ARTICLE 12 – DEFAULT AND REMEDIES
12.Default; Remedies.
12.1.Lessee's Default. The occurrence of any of the following shall constitute a default by Lessee:
12.1.1. The failure of Lessee to pay Annual Rent when or any other amounts due to NCTD hereunder, and said default shall continue for ten (10) days after the same becomes due.
12.1.2. The abandonment and vacation of the Property.
12.1.3. The bankruptcy or insolvency of Lessee, Lessee's making of an assignment for the benefit of creditors or institution of a proceeding under 19 243.5-1223-PK-DM
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the Bankruptcy Act in which Lessee is the bankrupt; or, if Lessee is a partnership or consists of more than one person or entity, the occurrence of any of the foregoing with respect to any partner of the partnership or other person or entity.
12.1.4. The levy of a writ of attachment or execution on this Lease.
12.1.5. The appointment of a receiver with authority to take possession of the Property in any proceeding or action to which Lessee is a party.
12.1.6. Any assignment or subletting by Lessee in violation of the provisions of Article 12 of this Lease.
12.1.7. The failure by Lessee to perform any other provision of this Lease if the failure to perform is not cured within thirty (30) days after notice has been given to Lessee, or, if the default cannot reasonably be cured within thirty (30) days, then within such additional time period, not to exceed one hundred twenty (120) days, as is reasonably necessary to cure such default provided that Lessee commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default.
12.2.NCTD's Remedies. NCTD shall have the following remedies if Lessee commits a default. These remedies are not exclusive; they are cumulative in addition to any remedies now or later allowed by law.
12.2.1. NCTD may continue this Lease in full force and effect, and the Lease will continue in effect until the Expiration Date as long as NCTD does not terminate Lessee's right to possession, and NCTD shall have the right to collect Rent when due. During the period Lessee is in default, NCTD can enter the Property and relet them, or any part of them, to third parties for Lessee's account. Lessee shall be liable immediately to NCTD for all costs NCTD incurs in reletting the Property, including, without limitation, brokers' commissions, expenses of remodeling the Property required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Lessee shall pay to NCTD the Rent due under this Lease on the dates the Rent is due, less the rent NCTD receives from any reletting. No act by NCTD allowed by this Article shall terminate this Lease unless NCTD notifies Lessee that NCTD elects to terminate this Lease. After Lessee's default and for as long as NCTD does not terminate Lessee's right to possession of the Property, if Lessee obtains NCTD's consent Lessee shall have the right to assign or sublet its interest in this Lease, but Lessee shall not be released from liability.
NCTD's consent to a proposed assignment or subletting shall not be unreasonably withheld. If NCTD elects to relet the Property as provided in this Article, Rent that NCTD receives from reletting shall be applied to 20 243.5-1223-PK-DM
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the payment of: (1) any indebtedness from Lessee to NCTD other than Rent due from Lessee; (2) all costs, including for maintenance, incurred by NCTD in reletting; and (3) Rent due and unpaid under this Lease. After deducting the payments referred to in this Article, any sum remaining from the Rent NCTD receives from reletting shall be held by NCTD and applied in payment of future Rent as rent becomes due under this Lease. In no event shall Lessee be entitled to any excess Rent received by NCTD. If, on the date Rent is due under this Lease, the Rent received from the reletting is less than the Rent due on that date, Lessee shall pay to NCTD, in addition to the remaining Rent due, all costs, including for maintenance, NCTD incurred in reletting that remain after applying the Rent received from the reletting as provided in this Article.
12.2.2. NCTD may terminate Lessee's right to possession of the Property at any time. No act by NCTD other than giving notice to Lessee shall terminate this Lease. Acts of maintenance, efforts to relet the Property, or the appointment of a receiver on NCTD's initiative to protect NCTD's interest under this Lease shall not constitute a termination of Lessee's right to possession. On termination, NCTD has the right to recover from Lessee:
(a) The worth, at the time of termination, of the unpaid Rent that had been earned at the time of termination of this Lease;
(b) The worth, at the time of termination, of the amount by which the unpaid Rent that would have been earned after the date of termination of this Lease until the time of award exceeds the amount of the loss of Rent that Lessee proves could have been reasonably avoided; (c) The worth, at the time of the termination, of the amount by which the unpaid Rent for the balance of the Lease term after the time of award exceeds the amount of the loss of Rent that Lessee proves could have been reasonably avoided;
(d) Any other amount, and court costs, necessary to compensate NCTD for all detriment proximately caused by Lessee's default; and (e) "The worth, at the time of the termination," as used in (a) and (b) of this Article 13.2.2, is to be computed by allowing interest at the maximum rate an individual is permitted by law to charge. "The worth, at the time of the termination," as referred to in (c) of this Article
13.2.2, is to be computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent (1%).
12.2.3. NCTD, at any time after Lessee commits a default, may, but shall have no obligation to cure the default at Lessee's cost. If NCTD at any 21 243.5-1223-PK-DM
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time, by reason of Lessee's default, pays any sum or does any act that requires the payment of any sum, the sum paid by NCTD shall be due immediately from Lessee to NCTD at the time the sum is paid, and if paid at a later date shall bear interest at the maximum rate an individual is permitted by law to charge from the date the sum is paid by NCTD until NCTD is reimbursed by Lessee. The sum, together with interest on it, shall be Additional Rent.
12.3.NCTD's Default. NCTD shall be in default under this Lease if NCTD fails or refuses to perform any provision of this Lease that NCTD is obligated to perform if the failure to perform is not cured within thirty (30) days after notice of the default has been given by Lessee to NCTD. If the default cannot reasonably be cured within thirty (30) days, NCTD shall not be in default under this Lease if NCTD commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default. If NCTD is in default under this Lease and, as a consequence, Lessee recovers a monatary judgment against NCTD, the judgment shall be limited to the Annual Rent , Additional Rent (if applicable), and Shared Parking Revenue at the time of judgement or termination.
12.4.Delays in Performance; Force Majeure. The time within which the Parties hereto shall be required to perform any act under this Lease, other than the payment of money, shall be extended by a period of time equal to the number of days during which performance of such act is delayed due to an act of God, fire, earthquake, flood, explosion, war, invasion, insurrection, riot, mob violence, or any other cause similar to the foregoing.
ARTICLE 13 - CONDEMNATION
13.Condemnation. If the whole of the Property is acquired or condemned by eminent domain, inversely condemned, or sold in lieu of condemnation, for any public or quasipublic use or purpose ("Eminent Domain"), then this Lease shall terminate as of the date of title vesting in such proceeding and the Rent shall be adjusted to the date of termination. If any part of the Property is acquired or condemned by Eminent Domain and such partial condemnation renders the Property unusable for the business of the Lessee, then this Lease shall terminate as of the date of title vesting in such proceeding and Rent shall be adjusted to the date of termination. If such condemnation is not extensive enough to render the Property unusable for the business of Lessee, then this Lease shall continue in full force and effect, except that after the date of such title vesting the Annual Rent shall be reduced to the extent that the area of the Property is reduced.
13.1.Division of Condemnation Award. If the Property and improvements on the Property are acquired or condemned in whole or in part by Eminent Domain, then the award paid for such condemnation shall be the property of NCTD, whether 22 243.5-1223-PK-DM
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such award shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, or as severance damages.
13.2.Lessee's Award. Lessee shall have the right to claim and recover from the condemning authority, but not from NCTD, such compensation as may be separately awarded or recoverable by Lessee's own right on account of any and all costs or loss (including loss of business) to which Lessee might be put in removing Lessee's merchandise, furniture, fixtures, leasehold improvements, and equipment and moving Lessee's business to a new location, provided that Lessee's award shall in no event reduce the amount of the award paid to NCTD.
13.3.Waiver of CCP § 1265.130. Each party waives the provisions of Code of Civil Procedure § 1265.130 allowing either party to petition the superior court to terminate this Lease in the event of a partial taking of the Property.
ARTICLE 14 – BROKERS’ FEES
14.Brokers' Fees. Lessee and NCTD each represent and warrant to the other that neither has had any dealings with any person, firm, broker or finder in connection with the negotiation of this Lease and/or the consummation of the transaction contemplated hereby, and no broker or other person, firm or entity is entitled to any commission or finder's fee in connection with this Lease or transaction. Lessee and NCTD do each hereby indemnify and hold the other harmless from and against any costs, expenses, attorneys' fees or liability for compensation or charges which may be claimed by any broker, finder or other similar party by reason of any dealings or actions of the indemnifying party.
ARTICLE 15 – SURRENDER OF PROPERTY
15.Surrender of Property. On the last day of the term of this Lease, or on any sooner termination, Lessee shall surrender the Property to NCTD in the same condition as received, ordinary wear and tear excepted, clean and free of debris. Any damage or deterioration of the Property shall not be deemed ordinary wear and tear if the same could have been prevented by good maintenance practices by Lessee. Lessee shall also remove all of Lessee's trade fixtures, alterations, furnishings, equipment, and personal property from the Property and shall repair any damage to the Property occasioned by the installation or removal of Lessee's trade fixtures, alterations, furnishings, equipment, and personal property. On the expiration of this Lease, Lessee shall surrender to NCTD the Property and all improvements on the Property in good condition within the time periods stated in this Article.
ARTICLE 16 – SALE, TRANSFER OR ENCUMBRANCE OF PROPERTY
16.Sale, Transfer, or Encumbrance of Property.
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16.1.Sale or Transfer. If NCTD sells or transfers all or any portion of the Property, NCTD, on consummation of the sale or transfer, shall be released from any liability thereafter accruing under this Lease. If any prepaid Rent has been paid by Lessee, NCTD can transfer the prepaid Rent to NCTD's successor and on such transfer NCTD shall be discharged from any further liability in reference to the prepaid Rent.
16.2.Encumbrance of Property by NCTD. This Lease is and shall be prior to any encumbrance recorded after the date of this Lease affecting NCTD's interest in the Property. If, however, a lender requires that this Lease be subordinate to any such encumbrance, this Lease shall be subordinate to that encumbrance if NCTD first obtains from the lender a written agreement that provides that, as long as Lessee performs Lessee's obligations under this Lease, no foreclosure of, deed given in lieu of foreclosure of, or sale under the encumbrance, and no steps or procedures taken under the encumbrance, shall affect Lessee's rights under this Lease. Lessee shall attorn to any purchaser at any foreclosure sale, or to any grantee or transferee designated in any deed given in lieu of foreclosure. Lessee shall execute the written agreement and any other documents required by the lender to accomplish the purposes of this Article.
16.3.Estoppel Certificate. Lessee, within ten (10) days after notice from NCTD, shall execute and deliver to NCTD or NCTD's designee a certificate stating that this Lease is unmodified and in full force and effect, or in full force and effect as modified, stating the modifications. The certificate also shall state the amount of Annual Rent, the dates to which the Rent has been paid in advance, and the amount of any prepaid Rent. If Lessee's fails to deliver the certificate within the ten (10) days, Lessee irrevocably constitutes and appoints NCTD as Lessee's special attorney-in-fact to execute and deliver the certificate to any third party, and such third party shall be entitled to rely upon the certificate executed by NCTD.
16.4.Relocation Assistance Benefits. Lessee is informed and acknowledges the following:
16.4.1. By entering into this Lease and becoming a tenant of NCTD, Lessee may become entitled to receipt of “relocation assistance benefits” (“Relocation Benefits”) pursuant to the Federal Uniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.) and/or the California Relocation Assistance Law (Cal. Gov. Code § 7270 et seq.) (collectively, the “Relocation Statutes”), should NCTD at some time make use of the Property in such a way as to “displace” Lessee from the Property.
Pursuant to the Relocation Statutes, NCTD may then become obligated to make payments to Lessee even where the displacement of Lessee does not otherwise constitute a breach or default by NCTD of its obligations pursuant to this Lease.
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Under the Relocation Statutes in effect as of the Effective Date of this Lease, Relocation Benefits may include payment to a “displaced person” of (i) the actual and reasonable expense of moving himself or herself and a family, business, or farm operation, including personal property, (ii) the actual direct loss of reestablishing a business or farm operation, but not to exceed twenty-five thousand dollars ($25,000), or (iii) payment in lieu of moving expenses of not less than one thousand dollars ($1,000) or more than forty thousand dollars ($40,000).
16.4.2. Lessee’s Waiver and Release of Relocation Benefits. In consideration of NCTD’s agreement to enter into this Lease, Lessee waives any and all rights it may now have, or may subsequently obtain, to Relocation Benefits arising out of NCTD’s assertion or exercise of its contractual rights to terminate this Lease pursuant to its terms, whether or not the rights are contested by Lessee or any other entity, and releases NCTD from any liability for payment of Relocation Benefits. Lessee does not waive its rights to Relocation Benefits to the extent that Lessee’s entitlement to Relocation Benefits may arise out of any condemnation or pre-condemnation actions taken by NCTD or any other public agency with respect to the Property. Lessee shall in the future execute any further documentation of the release and waiver provided by this Article as reasonably required by NCTD.
ARTICLE 17 - NOTICE
17.Notices. Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to Lessee at the address in Article
1.1 of the Basic Lease Provisions or to NCTD at 810 Mission Avenue, Oceanside, CA 92054, Attention: Real Estate Department. Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight (48) hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify a different address for notice purposes. A copy of all notices required or permitted to be given to NCTD hereunder shall be concurrently transmitted to such party or parties at such addresses as NCTD may from time to time hereafter designate by notice to Lessee.
ARTICLE 18 - NONDISCRIMINATION
18.Nondiscrimination. Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under and through Lessee, and this Lease is made and accepted and subject to the following conditions: There shall be no discrimination against or segregation of any person or group of persons, on account of sex, marital status, race, color, religion, creed, ancestry, disability, medical condition, genetic information, sexual orientation, gender identity or national origin in the leasing, subleasing, renting, transferring, use, occupancy, tenure, or enjoyment of Property 25 243.5-1223-PK-DM
27 November 13, 2023 Item 05
nor shall Lessee itself, or any person claiming under or through Lessee, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, or occupancy of Lessees, lessees, or vendees in the Property.
ARTICLE 19 – GENERAL PROVISIONS
19.General Provisions.
19.1. Waiver. No delay or omission in the exercise of any right or remedy of NCTD on any default by Lessee shall impair such a right or remedy or be construed as a waiver. The receipt and acceptance by NCTD of delinquent Rent shall not constitute a waiver of any other default; it shall constitute only a waiver of timely payment for the particular Rent payment involved. NCTD’s consent to or approval of any act by Lessee requiring NCTD’s consent or approval shall not be deemed to waive or render unnecessary NCTD’s consent to or approval of any subsequent act by Lessee. Any waiver by NCTD of any default must be in writing and shall not be a waiver of any other default concerning the same or an’ other provision of this Lease.
19.2. Continuing Control. Lessee acknowledges that the Property is used in connection with NCTD’s public purpose and other services to the public, and agrees that such uses by NCTD are superior in all respects to all uses by Lessee.
Lessee’s use of the Property must not in any way interfere with NCTD’s continuing control over the Property or NCTD’s expressed continued ability to carry out its functions. NCTD shall have the right without further liability to Lessee to terminate this Lease upon six-months written notice from NCTD (or less if six (6)-months’ notice cannot be reasonably given) in order to maintain continuing control over the Property or NCTD’s expressed continued ability to carry out its functions.
19.3. Time of Essence. Time is of the essence for each and every provision of this Lease.
19.4. Successors. This Lease shall be binding on and inure to the benefit of the Parties and their successors and assigns, except as may otherwise be provided in this Lease.
19.5. Modification. This Lease cannot be amended or modified except by a written agreement signed by both Parties.
19.6. Singular and Plural. When required by the context of this Lease, the singular shall include the plural.
19.7. Joint and Several Obligations. If NCTD or Lessee is more than one person or entity, the obligations imposed on that party shall be joint and several. 26 243.5-1223-PK-DM
28 November 13, 2023 Item 05
19.8. Severability. The unenforceability, invalidity, or illegality of any provision shall not render the other provisions unenforceable, invalid, or illegal.
19.9. Captions. The captions, headings and index appearing in this Lease are inserted for convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions of this lease.
19.10. Lease Administration. This Lease shall be administered on behalf of NCTD by the Chief Development Services Officer or a designee (collectively, the “NCTD Lease Administrator”), and on behalf of Lessee by the City Manager or by another person designated in writing by Lessee (collective the “Lessee’s Lease Administrator”).
19.11. NCTD Approval. Except where stated in this Lease to the contrary, the phrases “NCTD approval”, and “NCTD written approval” or similar phrases shall mean approval of the NCTD Lease Administrator.
19.12. Lessee’s Lease Administrator. Lessee confirms that Lessee’s Lease Administrator has been given full operational responsibility for compliance with the terms of this Lease. Lessee shall provide NCTD with written schedule of its normal hours of business operations on the Property, and Lessee’s Lease Administrator or a representative designated by Lessee shall be (i) available to NCTD on a twenty-four (24) hour a day, seven (7) days a week, basis, and (ii) present on the Property during Lessee’s normal business hours, to resolve problems or answer questions pertaining to this Lease and Lessee’s operations on the Property.
19.13. Business Days. The term “business days” as used in this Lease means any calendar day other than a Saturday, Sunday, or official NCTD holiday.
19.14. Cumulative Remedies. If a default under this Lease occurs, each party’s remedies shall be limited to those remedies set forth in this Lease. The remedies under this Lease are cumulative and not exclusive of any other remedies under this Lease to which the non-defaulting party may be entitled.
19.15. Entire Agreement. This Lease, together with all attached addenda, exhibits and riders attached to this Lease, constitutes the entire agreement between NCTD and Lessee with respect to the subject matter of this Lease, and all prior or contemporaneous agreements, understandings and representations, oral or written, are superseded.
19.16. Governing Law and Venue. This Lease shall be governed, construed and enforced in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Lease, the action shall be brought 27 243.5-1223-PK-DM
29 November 13, 2023 Item 05
in a State or Federal court situated in the County of San Diego, State of California.
19.17. Public Document. Lessee acknowledges that this Lease and all documents relating hereto are “public records” (as defined in section 6252(e) of the California Government Code), except for any documents relating to Tenant’s financial condition or otherwise exempt from such status pursuant to law, and that public records, with limited exemptions, are subject to public disclosure pursuant to the provisions of California Government Code, commencing with section 6250.
19.18. Interpretation. The language of this Lease shall be construed simply according to its plain meaning and shall not be construed for or against either party.
19.19. Authority. If Lessee is a corporation, trust, or general or limited partnership, Lessee, and each individual executing this Lease on behalf of such entity represent and warrant that such individual is duly authorized to execute and deliver this Lease on behalf of said entity. If Lessee is a corporation, trust or partnership, Lessee shall, deliver to NCTD evidence of such authority satisfactory to NCTD.
19.20. Counterparts. This instrument may be executed in any number of counterpart copies, each of which counterpart copy shall be deemed an original for all purposes.
LESSOR: LESSEE:
North County Transit District City of Del Mar
By: By:
Tracey Foster, Chief Development Ashley Jones, City Manager Services Officer
Date: Date:
Approved as to Form and Legality
By:________________________________
Lori A. Winfree, General Counsel
28 243.5-1223-PK-DM
30 November 13, 2023 Item 05
EXHIBIT A – PROPERTY DESCRIPTION
29 243.5-1223-PK-DM
31 November 13, 2023 Item 05
EXHIBIT B – INSURANCE REQUIREMENTS
Without limiting Lessee’s indemnification of NCTD as provided herein, Lessee shall provide and maintain at its own expense during the term of this Lease the below listed and described policies of insurance covering its operations hereunder. Evidence of such insurance satisfactory to NCTD along with required endorsements will be delivered to NCTD concurrent with execution of this Lease. Such evidence shall include certificate of insurance (Acord Form 25-S or equivalent). All evidence of insurance shall be issued by a properly authorized officer, agent or qualified representative of the insurer and shall certify the names of the insured, any additional primary insureds, where appropriate, the type and amount of the insurance coverage, the location and operations to which the insurance applies and the expiration date.
1. General Liability: Lessee shall provide and maintain the following commercial and general liability insurance:
A. Lessee shall maintain limits of no less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage, including injury or damage. The general liability policies are to be endorsed to contain the following provisions:
a. NCTD, its Board of Directors, officers, employees, consultants, contractors and agents are to be covered as additional insureds as respects liability arising out of the Property/Right-of-Way Leased by Lessee. The coverage shall contain no special limitations on the scope of protection afforded to NCTD, its Board of Directors, officers, employees, consultants, contractors and agents.
b. For any claims related to this Lease, Lessee’s insurance shall be primary insurance as respects to NCTD, its Board of Directors, officers, employees, consultants, contractors and agents. Any insurance, pooled coverage or self-insurance maintained by NCTD, its Board of Directors, officers, employees, consulltants, contractors and agents shall not be contributory. c. Lessee’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
d. The liability insurance shall indemnify the Lessee and its contractors against loss from liability imposed by law upon, or assumed under contract by the Lessee or its contractors for damages on account of such bodily injury 30 243.5-1223-PK-DM
32 November 13, 2023 Item 05
(including death), property damage, personal injury and completed operations and products liability.
e. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to NCTD, its Board of Directors, officers, employees, consultants, contractors or agents.
f. The insurance shall be provided on a policy form written by underwriters through an agency satisfactory to NCTD, which includes a cross-suit clause, and covers bodily injury and property damage liability, owned and nonowned vehicles and equipment, blanket contractual liability and completed operations liability.
3. All policies required shall be issued by insurance companies who are rated not less than "A VII" by the latest A. M. Best Company Key Rating Guide, who are authorized to transact business in California.
4. NCTD makes no representation that the limits or forms of coverage of insurance specified in this section are adequate to cover Lessee's property or obligations under this Lease. NCTD reserves the right to raise or lower limit requirements at the time of request, based upon the scope of work.
5. Prior to execution of this Lease, Lessee shall file with NCTD a certificate of insurance signed by the insurer’s representative. Such evidence shall also include confirmation that coverage includes or has been modified to include required provisions as set forth herein. Lessee shall upon the reasonable demand of NCTD, deliver to NCTD such policy or policies of insurance. Each insurance policy required by this clause shall state or be endorsed to state that coverage shall not be amended or cancelled, except after thirty (30) days prior notice by U.S. mail has been given to NCTD.
6. If any insurance coverage is canceled or reduced, Lessee shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with NCTD a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies, and said policy shall be submitted for approval as herein provided. At least fifteen (15) days prior to the expiration of any such policy, a certificate, showing that the insurance coverage has been renewed or extended, shall be filed with NCTD.
7. Every contractor or subcontractor of Lessee entering upon, using or performing any work upon the Right-of-Way/Property by or on behalf of Lessee shall provide evidence of insurance required herein prior to entering upon the Right-ofWay/Property. 31 243.5-1223-PK-DM
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8. NCTD reserves the right to increase the limits for the insurance required herein to amounts recommended by NCTD’s insurance risk manager or insurance representative.
32 243.5-1223-PK-DM
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EXHIBIT C
ANNUAL REVENUE CALCULATION EXAMPLE
Annual Rent
Annual Rent Payment $41,040
Total Rent due by July 31 (annually) $41,040
Gross Parking Revenue – NCTD Lot ONLY
Gross Revenue Collection $120,000
Gross Citation Revenue Collection $80,000
Total Gross Parking Revenue $200,000
Revenue Share with NCTD
Gross Parking Revenue Share (50% of total Gross Parking Revenue) $100,000 Less Lessee Administration Fee (20% of total Gross Parking Revenue) $(40,000) Less Annual Rent Payment $(41,040)
Total Net Shared Parking Revenue Due to NCTD $18,960
33 243.5-1223-PK-DM
35 November 13, 2023 Item 05
ATTACHMENT B – KEY DEAL POINTS
LEASE AGREEMENT FOR PARCEL 299-100-33-00 (TRAILHEAD PARKING LOT) NEW OR RENEWAL New Lease
LANDLORD/OWNER North County Transit District (NCTD)
LOCATION Parcel 299-100-3300
SIZE Approximately 29,280 square feet (29 Parking Spaces) PURPOSE Parking lot for San Dieguito Lagoon and Coast to Crest Trail TERM 9 years, 7 months beginning December 1, 2023, expires June 30, 2033
TOTAL
COSTS/REVENUES
Rent: Initial term $41,040 annual rent. Annual increase 3.0% or Consumer Price Index, whichever is greater.
The entire ten-year term will result in approximate rental cost totaling $470,500, which will be entirely offset by revenue in the form of a rent credit.
Shared Parking Revenue: Fifty-percent (50%) of the gross revenue earned from parking operations less administrative costs and rent expense, for each fiscal year.
DETERMINATION
OF LEASE VALUE
The base rental rate is within market, based on a survey of similar use types within the area.
36 November 13, 2023 Item 05
Board Policy No. 11
Real Estate
Summary
This policy establishes real property management goals, objectives, and procedures for NCTD real estate assets.
Purpose
Real estate shall be developed and managed to increase ridership and revenue and to enhance the transit rider’s experience.
Use of District Property
Use of District property by third parties shall not interfere with current or future transit use by the District.
District staff and consultants shall adhere to recognized industry standards of conduct and federally-required procedures, where applicable, when negotiating leases, licenses, easements, right to use, acquisitions, dispositions, and relocations.
District Property with Federal Transit Administration (FTA) Interest Certain NCTD real property has a FTA interest that has resulted from NCTD receiving FTA funding for the purchase of the real property. For purposes of this policy this real property is referenced as “real property with an FTA interest.”
1. Real property with an FTA interest shall be managed and used in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act or URA) (PL 91–646), FTA Circular 5010.1D, and 49 CFR part 24, the implementing regulation.
2. Real property with an FTA interest shall be used for the originally authorized purposes as long as needed for those purposes, and NCTD shall not dispose of or encumber its title or other interests unless approval has been obtained from the FTA.
3. Disposition of real property having an FTA interest that is no longer needed for the originally authorized purpose shall be in accordance with the NCTD Excess Real Property Inventory and Utilization Plan as further described in NCTD Board Policy No. 12 Excess Real Property Utilization Plan.
Real Property Inventory
NCTD shall prepare and keep up to date a real property inventory.
1. The inventory list shall include such elements as:
a. Property location, Assessor’s Parcel Number (APN), and size; b. The inventory shall identify whether each real property is excess;
37 November 13, 2023 Item 05
Board Policy No. 11 – Real Estate
c. Brief description of improvements;
d. Current use and condition of the property;
e. Summary of any conditions on the title, original acquisition cost, and the FTA participation ratio, as applicable; and
f. FTA grant number, appraised value, appraised date and date placed into service, as applicable.
2. The inventory shall identify whether each real property is excess:
a. An NCTD excess property inventory prepared in accordance with California Government Code § 50569; and
b. The District shall prepare and keep up to date an excess property inventory with an FTA interest in accordance with the NCTD Excess Real Property Inventory and Utilization Plan.
Acquisition of Real Property
Acquisition of real property requires Board approval and shall be in accordance with federal and state requirements and applicable federal and state statutory and regulatory requirements, including, but not limited to, the payment of just compensation, which is also just and fair to the public.
Disposal of Real Property
It is the general policy of the Board not to dispose of real property.
1. Disposal of real property requires Board approval.
2. Prior to disposing of excess real property without an FTA interest, a written offer to sell or lease the property shall be sent to entities described in California Government Code § 54222 and otherwise comply with the requirements of California Government Code § 54220, et seq. Guidelines provided by the California Department of Housing and Community Development, particularly as it relates to the Surplus Land Act, shall be followed.
3. All excess real property without an FTA interest shall be sold at fair market value, unless the Board determines that the sale of specific excess real property at less than fair market value serves a public purpose.
4. Excess real property with an FTA interest that is no longer needed for the originally authorized purpose shall be disposed of in accordance with the NCTD Excess Real Property Inventory and Utilization Plan.
Real Property Management
Real Property Management of the District’s real estate assets shall be directed by the Executive Director or his/her designee in accordance with this Policy.
38 November 13, 2023 Item 05
Board Policy No. 11 – Real Estate
1. All income and expense from real property shall be subject to a separate annual accounting that shall be summarily reported to the Board.
2. Unless there are restrictions on the use of proceeds from real property, all such proceeds shall be accounted for separately from other NCTD revenues and proceeds.
3. Revenue generated from the District's real estate assets will be used to fund the District’s activities.
4. The District shall inspect annually all real property under contract to a third party in accordance with Administrative Policy and Procedure DSD-4000: Incidental Use of Real Property
5. Joint development opportunities shall be pursued in accordance with NCTD Board Policy No. 33.
Stormwater
1. NCTD real estate assets shall be maintained, monitored and/or developed in compliance with the applicable NCTD Construction General Permit and NCTD MS4 Program requirements, as well as any other applicable local, state, or federal ordinances, law, rule and/or regulation.
2. For purposes of this Policy, “Construction General Permit” shall mean the State Water Resources Control Board (“SWRCB”) National Pollutant Discharge Elimination System (“NPDES”) General Permit for Waste Discharge Requirements for Discharges of Storm Water Runoff Associated with Construction and Land Disturbance Activities, as it may be amended or superseded, (currently Order No. 2012-0006-DWQ); and MS4 Program shall mean the RWQCB issued Phase II Small Municipal Separate Storm Sewer System (“MS4”) Program (currently Order No. 2013-0001-DWQ) as it may be amended or superseded.
Incidental Use of Real Property
Incidental use of real property shall be directed by the Executive Director or his/her designee in accordance with this policy and Administrative Policy and Procedure DSD-4000: Incidental Use of Real Property.
1. Incidental use of real property, including Right-of-Way permitting, shall be at fair market value and/or charged the appropriate fees as approved by the Board through the District fee schedule established annually with the budget. Monetary fair market values and Board-approved fees for a city or other public agency can be waived without Board approval as long as an equivalent reciprocal benefit is provided to NCTD. An exception to fair market value or any variance from the District fee schedule established annually with the budget requires Board approval.
2. Real Property Lease Terms more than ten (10) years, shall require Board approval.
3. Use of District property by outside parties shall not interfere with current or future transit use or activities by the District. Cost to relocate any facility installed as an incidental use to accommodate the District’s activities shall be the responsibility of the entity owning the facility.
39 November 13, 2023 Item 05
Board Policy No. 11 – Real Estate
4. Any entity requesting incidental use of real property, including public agencies, shall reimburse the District for all costs involved in processing such request, including, but not limited to, NCTD staff time, engineering review costs, appraisal, survey, consultant fees, legal fees, and construction related costs (submittal review, construction inspection, and Right-of-Way support services).
5. Incidental use of real property with an FTA interest, excluding Right-of-Way permitting, requires approval of the FTA.
6. Incidental use of real property with an FTA interest will not exceed that permitted under applicable federal laws, regulations, and directives.
7. All incidental use of real property, with the exception of Right-of-Way permitting, real estate agreements with a fee established by the Board approved Cost Recovery Fee Schedule, such as pipelines or wirelines, and other uses of property that are sole-source justified, will be facilitated by a competitive process and be consistent with Board Policies.
Approvals
Board Chair
Executive Director
General Counsel
10/21/2021
Date
10/21/2021
Date
10/21/2021
Date
40 November 13, 2023 Item 05
Board Policy No. 11 – Real Estate
DATE REVISION NO. RESOLUTION NO. COMMENTS
10/18/2012 Adopted 12-10
10/17/2013 1 13-07 2013 REVISION
10/16/2014 2 14-04 2014 REVISION
11/19/2015 3 15-08 2015 REVISION
10/20/2016 4 16-10 2016 REVISION
10/18/2018 5 18-09 2018 REVISION
10/17/2019 6 19-06 2019 REVISION
10/21/2021 7 21-05 2021 REVISION
41 November 13, 2023 Item 05
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Mayor Tracy Martinez and Council Member Dwight Worden, Council Liaisons to the Sustainability Advisory Committee
DATE: November 13, 2023
SUBJECT: Resolution Re-affirming the Declaration of a Climate Emergency for the City of Del Mar
REQUESTED ACTION/RECOMMENDATION:
Mayor Martinez and Council Member Worden recommend the City Council adopt a resolution (Attachment A) re-affirming the declaration of a climate emergency for the City of Del Mar and the need for accelerated action to address the climate crisis.
DISCUSSION/ANALYSIS:
On June 2, 2016, the City Council adopted a Climate Action Plan for the City of Del Mar (Resolution 2016-35) and directed staff to proceed with implementing the specified reduction measures to assist the City in reaching its long-range greenhouse gas (GHG) emission reduction’s goals.
On June 15, 2020, the City Council adopted Resolution 2020-33 declaring a climate emergency and the need for accelerated action to address the climate crisis.
The Sustainability Advisory Committee (SAC), as part of their Council-approved Fiscal Year 2023-2024 work plan, developed an updated resolution re-affirming the declaration of a climate emergency in the City of Del Mar. At its meeting of October 23, 2023, the SAC unanimously recommended the Resolution be adopted by the City Council. The updated resolution provides additional context on climate related concerns and re-affirms that that long-term consequences for Del Mar due to climate change remain a high priority for the City.
Del Mar, like the rest of California, already suffers from the impacts of climate change such as drought, extreme heat, wildfires, species stress, dying Torrey Pines, shrinking kelp forest and coastal erosion, sea level rise, and flooding. These impacts will become more severe as global GHG emissions continue to increase. 1 November 13, 2023 Item 06
City Council Agenda Report
Resolution Re-affirming the Declaration of a Climate Emergency for the City of Del Mar November 13, 2023
Del Mar has the continued ability to impact change as well as the moral obligation to do so. Efforts to control climate change will have many benefits, such as cleaner air and water, local employment, cost savings for households and businesses, and the creation of a stronger and more resilient community.
For these reasons, the Council liaisons to SAC, Mayor Martinez and Council Member Worden, recommend the City Council adopt a resolution re-affirming the declaration of a climate emergency for the City of Del Mar, and the need for accelerated action to address the climate crisis (Attachment A).
FISCAL IMPACT:
There is no fiscal impact or action to be taken by the City Council related to this agenda item.
ENVIRONMENTAL IMPACT:
The proposed ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15308 of the CEQA Guidelines because it is an activity undertaken to assure the maintenance, restoration, enhancement and protection of the environment and pursuant to Section 15061(b)(3) because there is no possibility that the activity in question may have a significant effect on the environment.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item and is not a special project on the City Council’s list of goals and priorities.
ATTACHMENTS:
Attachment A – Resolution Re-affirming the Declaration of a Climate Emergency for the City of Del Mar
2 November 13, 2023 Item 06
RESOLUTION NO. 2023-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DEL
MAR, CALIFORNIA, REAFFIRMING A DECLARATION OF A
CLIMATE EMERGENCY AND THE NEED FOR ACCELERATED
ACTION TO ADDRESS THE CLIMATE CRISIS
WHEREAS, climate change is an urgent unfolding crisis that presents a serious long-term threat to human existence; and
WHEREAS, in 2018, the United Nations Intergovernmental Panel on Climate Change (IPCC) issued its special report on Global Warming of 1.5°C, a report on the impact of global warming and the need to reduce global greenhouse gas (GHG) emissions by approximately forty-five percent by 2030, achieve ‘net-zero’ emissions by 2050, and achieve and maintain net-negative emissions after that to hold atmospheric warming to 1.5 degrees Celsius and avoid the most catastrophic impacts of climate change; and
WHEREAS, in recognition of the commitments necessary to address the scale and scope of the climate crisis, Governor Jerry Brown issued Executive Order B-55-18 ordering the State of California to achieve net-zero emissions as soon as possible, and no later than 2045, and achieve and maintain net-negative emissions thereafter; and WHEREAS, in 2018, the United States’ Fourth National Climate Assessment made it clear that climate change will wreak havoc across the United States of America, and that the current pace and scale of climate action is not sufficient to avoid substantial damage to the economy, the environment, and to human health over the coming decades; and
WHEREAS, the United Nations November 2019 Emissions Gap Report found that countries have collectively failed to stop the growth in emissions, and in order to stay on track to meeting the Paris Agreement goals established in 2016, the UN called for immediate and aggressive action to achieve carbon neutrality by 2030; and WHEREAS, as of 2023, more than 15,000 scientists from 163 countries have signed the World Scientist’s Warning of a Climate Emergency 2020 declaring “clearly and unequivocally that planet Earth is facing a climate emergency” that is accelerating faster than many scientists expected, is more severe than anticipated, and is threatening natural ecosystems and the fate of humanity; and
WHEREAS, according to the National Interagency Fire Center data, of the 10 years with the largest acreage burned since 1983, all have occurred since 2004, including the peak years in 2015 and 2020; and
WHEREAS, according to the Gordon & Betty Moore Foundation, the total economic value of wildfires’ costs to the State of California (including labor market 3 November 13, 2023 Item 06
Resolution No. 2023-XX
disruptions, property damage and losses of life) is estimated to total over $117.4 billion annually over the period 2017-2021, with an estimated $5.0 billion annually attributable to reduced tax revenues and increased wildfire response costs; and WHEREAS, June, July and August 2023 were the hottest June, July, and August, respectively, worldwide, since global records began in 1880 at NASA’s Goddard Institute of Space Studies; and
WHEREAS, according to the National Centers for Environmental Information, in 2023 (as of October 10), there have been 24 confirmed weather/climate disaster events with losses exceeding $1 billion each to affect United States, up significantly from the 1980–2022 annual average of 8.1 events and the annual average for the most recent 5 years (2018–2022) of 18 events; and
WHEREAS, according to a peer reviewed article in Nature Climate Change, new research findings published in 2023 project that rapid ocean warming, at approximately triple the historical rate, is likely committed over the twenty-first century, with widespread increases in ice-shelf melting, likely leading to the collapse of the West Antarctic Ice Sheet, suggesting that adaptation should now be considered more seriously as a priority in the world’s response to sea-level rise; and
WHEREAS, scientists released a peer reviewed article in Nature Climate Change in October 2023 showing that the world’s “carbon budget” — the amount of greenhouse gas emissions the world can still emit without boosting global temperatures more than 1.5 degrees Celsius — has shrunk by a third, and the world only has 6 years left at current emissions levels before racing past that temperature limit; and WHEREAS, Del Mar, like the rest of California, already suffers from the impacts of climate change such as drought, extreme heat, risk of wildfires, species stress, dying Torrey Pines, shrinking kelp forest and coastal erosion, sea level rise, and flooding, and these impacts will become more severe as global GHG emissions continue to increase; and
WHEREAS, the City of Del Mar is particularly vulnerable to sea-level rise, saltwater intrusion, wildfire, and coastal erosion, all exacerbated by extreme weather events with increased flooding and increased temperatures causing evaporation on land; and WHEREAS, in the City of Del Mar, emissions from gas-powered cars contributes over half of the City’s carbon emissions according to the City’s Climate Action Plan; and WHEREAS, it is an act of unspeakable injustice and cruelty to knowingly subject fellow humans now and in the future to societal disintegration, food and clean water shortages, economic collapse, and early death on an increasingly uninhabitable planet; and
4 November 13, 2023 Item 06
Resolution No. 2023-XX
WHEREAS, cities have a particular role to play in dealing with climate change as a result of being both a significant cause of climate change and among the most affected; and
WHEREAS cities are centers of innovations and creativity and have the ability to plan and act locally, and also have a significant role to accelerate action in climate change solutions; and
WHEREAS, cities’ efforts to control climate change will have many benefits, such as cleaner air and water, local employment, cost savings for households and businesses, and the creation of a stronger and more resilient community; and WHEREAS, the City of Del Mar took a decisive role in 2016 with the adoption of a Climate Action Plan (www.delmar.ca.us/699/Climate-Action-Plan) detailing how the City will meet its GHG reduction targets by using a number of goals, measures and strategies; and
WHEREAS, the City’s Climate Action Plan provides a starting point for Del Mar to become an engaged community that promotes environmental stewardship and economic vitality to create a sustainable and thriving future for all; and WHEREAS, in 2019 the City of Del Mar joined with Solana Beach and Carlsbad to form a Community Choice Energy program (the Clean Energy Alliance) that has since been joined by the cities of Escondido, San Marcos, Vista, and Oceanside, to further Del Mar’s goal of achieving 100 percent renewable electricity citywide by 2035; and WHEREAS, the City of Del Mar committed to purchase 100% green energy from the Clean Energy Alliance for all city electricity needs as an example for the community; and
WHEREAS, the City Council first adopted Resolution No. 2020-33 in 2020, declaring a climate emergency for the City of Del Mar and the need for accelerated action to address the climate crisis; and
WHEREAS, the City of Del Mar acknowledges that more work will be needed to achieve net-zero emissions and address the magnitude of the climate emergency; and WHEREAS, the City of Del Mar identifies addressing the adverse consequences of climate change as a matter of the highest priority.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Del Mar, California, that:
1. A state of climate emergency is hereby confirmed, and it is acknowledged that the global climate crisis poses a serious, urgent, and existential threat to the well-being of Del Mar, its residents, economy, and environment; and 5 November 13, 2023 Item 06
Resolution No. 2023-XX
2. The City of Del Mar aspires to swiftly transition to an ecologically, socially just, and economically sustainable economy and to reduce community-wide carbon emissions as much as possible; and
3. The City of Del Mar calls for regional emergency climate action mobilization, and will work quickly and collaboratively with surrounding cities and the region to take advantage of economy of scale and for united engagement against the common threat of our climate crisis; and
4. The City of Del Mar further commits to advance strategies to attain the goal of net-zero emissions as soon as possible; and
5. The City of Del Mar commits to recognize the emergency climate situation such that climate impacts are considered in all decision making; and
6. The City of Del Mar commits to increased attention on implementing the strategies in its Climate Action Plan, adding new strategies and goals to the City’s Council-adopted workplan when appropriate; and prioritizing implementation of all strategies as resources allow; and
7. The City of Del Mar commits to ensuring that the City’s actions remain in alignment with the most current scientific findings regarding climate change and that it will continue to rely on and solicit the advice and guidance of scientific experts; and
8. The City of Del Mar commits to reducing dependency upon automobiles by promoting more telecommuting, and by working with regional, state, and federal organizations such as San Diego Association of Governments (SANDAG), North County Transit District (NCTD), San Diego Metropolitan Transit System (MTS), Amtrak, California Air Resources Board (CARB) and bike and pedestrian groups to increase the viability of alternative transportation options; and
9. The City of Del Mar commits to support the North County Sub-Regional Climate Equity Index grant proposal developed by the San Diego Regional Climate Collaborative (SDRCC) and the Energy Policy Initiatives Center (EPIC) which will create an improved understanding of climate burdens and support multijurisdictional collaboration of projects; and investments; and
10. The City of Del Mar commits to implement a Recycled-content Paper Procurement Policy requirements as described in Senate Bill 1383 regulations; and
11. The City of Del Mar commits to implement an environmentally preferable purchasing policy; and
6 November 13, 2023 Item 06
Resolution No. 2023-XX
12. The City of Del Mar commits to supporting SANDAG's development of a Regional Priority Climate Action Plan (PCAP) to allow access to EPA Climate Pollution Reduction Grants (CPRG) funding for reducing greenhouse gas emissions and other harmful air pollution; and
13. The City of Del Mar commits to work and partner with residents, businesses, and community groups to educate our community about the climate crisis, and to work to catalyze a just transition and a climate emergency mobilization effort at the local, state, national and global levels, to protect our residents and future generations; and
14. The City of Del Mar calls upon its community to accelerate the climate emergency mobilization effort and contribute to the reduction of the effects of global warming for future generations by restoring near pre-industrial greenhouse gas concentrations, by accelerating the transition to sustainable green energy sources, by encouraging those with the regulatory authority to do so to halt the development of new fossil fuel infrastructure, by rapidly phasing out fossil fuels and the technologies which rely upon them, by and restoring ecosystems and habitats, by vastly reducing waste and simultaneously creating high-quality, well-paying jobs with comprehensive local benefits, and mitigating the potentially adverse impacts to those who will be most impacted by this transition, to result in an equitable, inclusive and resilient community for all.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Del Mar, California, at a Regular Meeting held this 13th day of November, 2023. _____________________________
Tracy Martinez, Mayor
City of Del Mar
APPROVED AS TO FORM:
___________________________
Leslie E. Devaney, City Attorney
City of Del Mar
7 November 13, 2023 Item 06
Resolution No. 2023-XX
ATTEST AND CERTIFICATION:
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF DEL MAR
I, SARAH KRIETOR, Administrative Services Manager/City Clerk of the City of Del Mar, California, DO HEREBY CERTIFY, that the foregoing is a true and correct copy of Resolution No. 2023-XX, adopted by the City Council of the City of Del Mar, California, at a Regular Meeting held the 13th day of November, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sarah Krietor, Administrative Services
Manager/City Clerk
City of Del Mar
8 November 13, 2023 Item 06
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Michael Luna, Special Projects & Programs Manager Via Ashley Jones, City Manager
DATE: November 13, 2023
SUBJECT: Scope of Work with the Solana Center for Environmental Innovation for Organics Recycling Compliance Support Services
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council approve a scope of work totaling $38,000 with Solana Center for Environmental Innovation (Solana Center) (Attachment A) for Organics Recycling Compliance Support Services under an existing agreement between the Solana Center and the Regional Solid Waste Association (RSWA) Joint Powers Authority, of which the City is a member agency and authorize the City Manager to execute the required documents.
DISCUSSION/ANALYSIS:
In August 2020, the City of Encinitas issued a Request for Proposals (RFP) on behalf of the RSWA member agencies (cities of Encinitas, Solana Beach, Del Mar, National City, Poway, Escondido, and Vista) for organics recycling compliance support services to assist the member agencies with complying with Senate Bill (SB 1383), Short-Lived Climate Pollutants.
On March 25, 2021, RSWA entered into an agreement for consultant services with the Solana Center to provide specific SB 1383 compliance services for its member agencies.
The agreement allowed for the Solana Center to perform certain “core compliance tasks” on behalf of the member agencies and paid for by RSWA, but also included “optional tasks” that the member agencies could utilize and pay for through December 31, 2021.
After the Solana Center completed all the core compliance tasks under the original agreement, the RSWA Board has approved a number of amendments to the original agreement, including Amendment No. 6, which was approved at RSWA’s meeting on July 13, 2023. Amendment No. 6 extended the contract term through June 30, 2025, the scope of services was refined based on requests by the member agencies and the experience gleaned from prior years, and the pricing was updated (Attachment B).
Member agencies will continue to have access and use the negotiated pricing and scope of work established through the RSWA contract with the Solana Center. 1 November 13, 2023 Item 07
City Council Agenda Report
Scope of Work with the Solana Center for Environmental Innovation November 13, 2023
The City of Del Mar along with the other member agencies are highly satisfied with the work done by the Solana Center and benefit from the collective negotiating completed by RSWA. During 2022, the Solana Center provided extensive education, outreach, and technical assistance on organics diversion with commercial account holders and edible food generators. In addition, they have led inspections of all edible food generators in the City required under SB 1383. Moving forward, in FY 2023-2024 & FY2024-2025, the City will be utilizing the Solana Center for additional services related to SB 1383 as further described in Attachment A, for a total cost of $38,000 (of which, $2,600 will be paid by RSWA).
Staff recommends that the City Council approval the attached scope of work with the Solana Center for Organics Recycling Compliance Support Services available under the existing agreement with the RSWA through June 30, 2025. The City of Del Mar Municipal Code (DMMC) Chapter 7.04.090 (G), Exemption from Bidding, allows the City to procure goods, services and/or professional services obtained from or through agreement with any governmental, public or quasi-public agency where the agency contracted for goods, services and/or services through a competitive process as described in Section 7.04.100.
FISCAL IMPACT:
There is no fiscal action to be taken by the City Council related to this agenda item. The total cost of services to be provided to the City by the Solana Center is $38,000, of which $2,600 will be paid by RSWA. Sufficient funds have been included in the approved Fiscal Years 2023-2024 and 2024-2025 Operating and Capital Budget to cover Organics Recycling Compliance Support Services through June 30, 2025.
ENVIRONMENTAL IMPACT:
The proposed City Council action does not constitute a “project” under the definition set forth in California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not have a potential to result in a direct or indirect physical change in the environment and is, therefore, not subject to CEQA. No further action under CEQA is required.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This is an operational item and is not related to the City Council Goals and Priorities.
ATTACHMENTS:
Attachment A – Scope of Work with the Solana Center for SB 1383 Compliance Services
Attachment B – Regional Solid Waste Association (RSWA) Solana Center Fee Schedule
2 November 13, 2023 Item 07
AMENDMENT #6 Described Services
RSWA Scope of Work for SB 1383 Support Services
(August 1, 2023 – June 30, 2024)
Background
Solana Center for Environmental Innovation will continue inspections and technical assistance for Tier 1 and Tier 2 entities and inspections on Food Recovery Organizations (FROs) toward SB 1383 compliance.
In addition to commercial businesses, entities may include schools, multifamily dwellings, and any others included under the state mandate. Through this contract, Solana Center also offers further tasks to support cities and businesses including the following areas – how-to and informational webinars, generator list updates, capacity planning, procurement advice, inspection training, and as-needed city assistance.
Del Mar requires assistance from Solana Center for SB1383 support services which can be provided under Amendment 6, also known as “Amended and Restated RSWA Contract,” (attached). The billing rate is $105/hour. RSWA will be providing Del Mar funding of $2,600, earmarked for SB 1383 work 1 . The tasks
that Del Mar has requested from Amendment 6 are listed below.
Following are two tables with corresponding tasks that Del Mar has shown interest in. Table 1 lists each Solana Center task with a description and the relation to SB 1383 requirements. Table 2 provides pricing, quoted per unit. Additional tasks offered through Amendment 6 can be found in the attached contract.
Table 1: SB 1383 Overview of Tasks for Cities (FY 2023-2024) # Task Description SB 1383 requirements
Education and Outreach
1.2 Develop & Deliver
Annual
Education/Outreach
Examples include updating
resources and reviewing websites,
which are mandatory
- annual education to all Tier 1
and Tier 2 businesses
(18985.1)
- website listing of food
recovery organizations (FROs)
updated (18985.2)
Edible Food Recovery Programming
2.1-
2.3 Provide Technical
Assistance to
Businesses
Offer consulting services to Tier 1
and Tier 2 food businesses
- enforcement begins
1/1/2024 so those who need
assistance to comply can
receive help
2.4 Inspect Businesses &
Food Recovery
Organizations (FROs)
Conduct annual inspections to food
generators and FROs covered by SB
1383 on food donation to ensure
compliance
- inspections were required of
Tier 1 businesses beginning
1/1/2022
1 RSWA funding may be used for any SB 1383 work. It is not restricted to Solana Center’s services.
Solana Center for Environmental Innovation 1
Attachment A
3 November 13, 2023 Item 07
# Task Description SB 1383 requirements
Cities determine the number and
frequency of inspections needed to
ensure compliance
- inspections are required of
Tier 2 businesses beginning
1/1/2024
- inspections were required of
FROs beginning 1/1/2022
- includes schools, multifamily
residences, and others under
SB 1383
(Article 14 18995.1)
2.5 Offer Individualized
Business Support
Provide individual guidance to
businesses on any SB1383
requirement
- support SB1383 compliance
for businesses
Capacity Planning
3.1 Update Tier Lists &
Capacity Planning
Review and update list of
businesses categorized by tier.
Quantify edible food generation and
recovery for the County according
to (1) edible food disposal by
businesses and (2) food recovery
capacity of FROs
- updated capacity planning
due to CalRecycle 8/1/2024
- due to County 3-4 months
prior
(Article 11 18992.2)
Organic Waste Recycling
4.1 Train Businesses to
Recycle Organics
Properly
Organic waste sorting and recycling
setup guidance. Training can be
varied from onsite visits, webinars,
multimedia videos etc.
Creation of resources (print or
multi-media) and signage to help
with training.
-properly separate materials
in appropriate containers
pursuant to SB1383
compliance.
(Article 4 18985.1)
-educate business owners
about their organic recycling
commercial business owner
responsibilities (Article 3
18984.10)
4.2 Guide Multi-Family
Properties to Recycle
Organics Properly
Organic waste sorting training to
multi-family businesses.
Guidance can take a variety of forms
- webinar, workshop, print or
electronic resources.
Additional hotline services to guide
as needed.
-properly separate materials
in appropriate containers
pursuant to SB1383
compliance.
(Article 4 18985.1)
Implementation Services
5.1 Compile Food
Recovery Data for City
Compile the required food recovery
program and education data to
support EAR reporting and ensure
- records must be maintained
and available to CalRecycle
about the food recovery
Solana Center for Environmental Innovation 2
4 November 13, 2023 Item 07
implementation record keeping
compliance
program in place and
education provided
(Article 13 18994.2, Article 14
18995.2)
5.2 Advise on
Procurement
Support cities in developing
procurement processes for recycled
products procurement including
recycled content paper.
- cities must purchase a
specific quantity of recycled
organic waste products
(ROWP) eg. compost, mulch,
RNG, and recycled content
paper. Reference AB1985 for
ROWP compliance and
beginning 1/1/2022 for
recycled content paper.
(Articles 12 18993.1, 18993.3)
5.3 Support City
Enforcement
Support cities with development of
enforcement processes, notices of
violation, investigation of
complaints, site inspections to verify
corrections, and associated
recordkeeping
- enforcement for all regulated
businesses (T1/T2) and FROs
must begin 1/1/2024
(Article 14 18995.1)
6.1 Offer As-Needed
Consulting
Provide guidance on SB1383
regulation, best practices
implemented, EAR support (Edible
Food Recovery related sections),
support for meetings with
CalRecycle, etc. Confer with other
entities (eg, CalRecycle, EDCO, DEH,
foodbanks, corporate headquarters,
other cities in the state) on
client-City’s behalf
- general support of SB1383
compliance to jurisdictions
- necessary to get guidance
from CalRecycle on
City-specific issues
This is proving essential as all
cities are still getting up to
speed on SB1383 and
unexpected needs continually
surface
6.2 Invoice & Report
Monthly
Deliver monthly invoicing and
reporting to City
- n/a
6.3 Drive Time & Mileage
Expense
A set rate per trip for each city - n/a
Solana Center for Environmental Innovation 3
5 November 13, 2023 Item 07
Table 2: SB 1383 Amendment 6 Pricing
Solana Center for Environmental Innovation 4
6 November 13, 2023 Item 07
Total contract amount: NTE $38,000.00
Points of Contact
Solana Center for Environmental Innovation
Program Lead: Mallika Sen, [email protected], 760.436.4986 x724 Contracts Manager: Kayleigh Dearstyne-Hulin, [email protected],760.436.4986 x716 City of Del Mar
Assistant City Manager: Clement Brown, [email protected], 858.375.9524 Special Projects & Programs Manager: Michael Luna, [email protected], 858.704.3632 This work will be executed and delivered in the manner prescribed by this Agreement. _______________________________________ ________________________________________ Jessica Toth Ashley Jones
Executive Director City Manager
Solana Center for Environmental Innovation City of Del Mar _______________________________________ ________________________________________ Date Signed Date Signed
Solana Center for Environmental Innovation 5
7 November 13, 2023 Item 07
1780262.3
Table 2
Not-To-Exceed Unit Costs for SB 1383 Compliance Support Services Available to Cities SB 1383 AMENDMENT 6 PRICING - SOLANA CENTER FOR ENVIRONMENTAL INNOVATION Task Units FY24 Cost/Unit FY25
Cost/Unit
Education & Outreach
1.1.a Offer Webinars* webinar $2,100.00 $2,205.00
1.1.b Develop Customized Webinar Content new topic $5,250.00 $5,512.50
1.2 Develop & Deliver Annual Education/Outreach hourly $105.00 $110.25
1.3 Deliver School Food Management Programs hourly $105.00 $110.25
1.4 Deliver School District Food Recovery Programs hourly $105.00 $110.25
2.1 Provide Abbreviated Technical Assistance business $603.75 $633.94
2.2 Provide Tier 1 Comprehensive Technical Assistance business $1,260.00 $1,323.00
2.3 Provide Comprehensive Tier 2 Technical Assistance business $840.00 $882.00
2.4 Inspect Businesses & Food Recovery Organizations business $603.75 $633.94
2.5 Offer Individualized Business Support hourly $105.00 $110.25
2.6.a Offer Inspector Training - Part 1* training session $3,750.00 $3,937.50
2.6.b Offer Inspector Training - Part 2* training session $2,500.00 $2,625.00
3.1 Update Tier Lists & Capacity Planning hourly $105.00 $110.25
3.2 Plan Food Rescue Additional Capacity hourly $105.00 $110.25
4.1 Train Businesses to Recycle Organics Properly hourly $105.00 $110.25
4.2 Guide Multi-Family Properties to Recycle Organics Properly hourly $105.00 $110.25
5.1 Compile Food Recovery Data for City hourly $105.00 $110.25
5.2 Advise on Procurement hourly $105.00 $110.25
5.3 Support City Enforcement hourly $105.00 $110.25
6.1 Offer As-Needed Consulting hourly $105.00 $110.25
6.2 Invoice & Report Monthly monthly $500.00 $525.00
* The cost of these tasks can be shared across cities
** A set rate per city will be established, based on the reduced hourly rate + federal mileage rate Edible Food Recovery Programming
Organic Waste Recycling
Implementation Services
Program Management
6.3 Drive Time & Mileage Expense** trip
Capacity Planning
$78.75/hr +
standard
mileage rate
$82.69/hr +
standard
mileage rate
8 November 13, 2023 Item 07
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Karen Falk, Principal Engineer
Joe Bride, Public Works Director
Mariel Cairns, Associate Management Analyst
Via Ashley Jones, City Manager
DATE: November 13, 2023
SUBJECT: Award of Construction Contract to Bali Construction, Inc. for the 2023 Water, Wastewater, Pavement, and Storm Drain Project
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council: 1) Award a $1,675,555 construction contract to Bali Construction, Inc (Attachment A) for the 2023 Water, Wastewater, Pavement, and Storm Drain Project; 2) Award a $136,340 Task Order to Dudek for Construction Management and Inspection Services (Attachment B); 3) Approve a 10% project contingency of $167,525; 4) Authorize the City Manager to execute the required documents and any contract changes necessary to complete the work; and 5) Amend the Fiscal Year 2023-2024 Operating and Capital Budget as described in the Fiscal Impact Section of this report.
DISCUSSION/ANALYSIS:
The 2023 Water, Wastewater, Pavement, and Storm Drain Project (Project) addresses essential high priority infrastructure repairs throughout the City. This project combines multiple Capital Improvement Program projects into a single bid package, including Annual Water System Priority Improvements, Annual Wastewater System Priority Improvements, Category 1 Storm Drain Repairs, Major Arterial Bike Route Repairs, and Annual Pavement Management Program.
Water improvements include the extension of 40 linear feet (LF) of pipeline on Christy Lane and replacement of 780 LF of pipeline on Bellaire Street. Sewer improvements will occur on Nob Avenue and Ocean View Avenue. Storm Drain replacements will occur at two locations: the intersection of Luneta Drive/Zuni Drive, and Van Dyke Avenue near the intersection with Rimini Road. Pavement repairs include full curb-to-curb roadway repairs on Camino del Mar between Coast Boulevard and Jimmy Durante Boulevard, and on Nob Avenue/Ocean View Avenue between the City boundary and Pine Needles Drive.
In accordance with the City’s Municipal Code and Public Contract Code, a notice inviting sealed bids was published on October 6, 2023. This was posted to the City’s website, the contractor’s notification web platform Bidnet.com, and published twice in the newspaper. 1 November 13, 2023 Item 08
City Council Agenda Report
Award of Construction Contract – 2023 Water, Wastewater, Pavement, and Storm Drain Project November 13, 2023
Following the bid solicitation process, two (2) bids were received and opened on November 1, 2023. The verified bid amounts are listed below:
Bidder Bid Amount
Bali Construction, Inc. $1,675,555
Burtech Pipeline, Inc. $1,899,772
For Reference: Engineer’s Estimate $1,602,322
Public Contract Code Section 20162 requires that the City award the contract to the lowest responsive and responsible bidder based on the Base Bid alone. Staff evaluated Bali Construction’s Bid of $1,675,555 (Attachment C) and determined them to be the lowest responsive and responsible bidder.
The City has an agreement in place with Dudek for as-needed general engineering services. Staff recommends issuing Dudek a $136,340 Task Order (Attachment B) to provide construction management and inspection services for this project.
The total estimated project expenditures through project completion is $2,009,000 as listed in Table A below. This amount includes the construction contract with Bali Construction, construction management and inspection services provided by Dudek, engineering services during construction provided by Psomas on the water, wastewater, and pavement design and Michael Baker International on the storm drain design, and a 10% project contingency for change orders due to unforeseen field conditions, need for specialty inspections, or any other unanticipated costs during construction.
Table A: Project Expenditures
Based on the construction bid, the following funding sources will be used for this project and are listed in Table B below.
Table B: Project Funding Sources
AMOUNT
Construction Management (Dudek) $ 136,340
Engineering Services (Psomas & MBI) 29,580
Construction (Bali Construction) 1,675,555
Project Contingency (10%) 167,525
Total Project Cost $2,009,000
Fund AMOUNT
Water Fund $ 924,120
Wastewater Fund 293,720
Clean Water Fund 373,930
2 November 13, 2023 Item 08
City Council Agenda Report
Award of Construction Contract – 2023 Water, Wastewater, Pavement, and Storm Drain Project November 13, 2023
Pending City Council approval, the project will begin in December 2023 after the contract is executed and a Notice to Proceed is issued. The project duration is estimated to be 140 calendar days and completion is expected in April 2024.
FISCAL IMPACT:
Table C are the various Capital Improvement Project budgets used to fund this project.
Approval of this item will require the City Council to amend the Fiscal Year 2023-2024 Operating and Capital Budget by: 1) approving the carry-over of unspent Fiscal Year 2022-2023 capital budgets; and 2) approving the re-appropriation of Fiscal Year 2024- 2025 Water capital project budget to Fiscal Year 2023-2024.
Table C: Project Budget
ENVIRONMENTAL IMPACT:
Pursuant to the California Environmental Quality Act (CEQA), the proposed project has been analyzed and determined to be Categorically Exempt pursuant to: CEQA Guidelines Section 15301(d) – Class 1 (Existing Facilities), as the project involves repair, maintenance, and minor alterations of existing water pipeline within the public right-ofway; Section 15302(c) – Class 2 (Replacement or Reconstruction) as the project involves Measure Q Fund (Required annual contribution toward the City’s Maintenance of Effort (MOE)) 75,000
TransNet Fund 40,000
Road Maintenance and Rehabilitation Account Fund (SB-1) 90,380 General Fund 211,850
Total Project Cost $2,009,000
PROGRAM FUND ACCOUNT AMOUNT
Water Improvements (FY23 Carryover) Water 51.7000.7017 $ 410,222 Water Improvements (FY24 Budget) Water 51.7000.7017 184,128 Water Improvements (FY25 Budget) Water 51.7000.7017 269,770 Citywide Water Pressure Imprv (FY24) Water 51.7000.7054 60,000 Wastewater Improv (FY23 Carryover) Wastewater 57.7000.7024 254,902 Wastewater Improv (FY24 Budget) Wastewater 57.7000.7024 38,818 Storm Drain Imprv (FY23 Carryover) Clean Water 55.7000.7045 373,930 Pavement Rehab (FY23 Carryover) Measure Q 02.7000.7009 75,000 Pavement Rehab (FY23 Carryover) General 40.7000.7009 126,576 Pavement Rehab (FY24 Budget) SB1 40.7000.7009 90,380
Pavement Rehab (FY23 Carryover) TransNet 44.7000.7009 40,000 Major Arterial Bike Route Repairs
(FY23 Carryover) General 40.7000.7041 55,000
Major Arterial Bike Route Repairs
(FY24 Budget) General 40.7000.7041 30,274
Total Budget $2,009,000
3 November 13, 2023 Item 08
City Council Agenda Report
Award of Construction Contract – 2023 Water, Wastewater, Pavement, and Storm Drain Project November 13, 2023
replacement of 780 LF of an existing water pipeline in the public right-of-way; and Section 15303(d) – Class 3 (New Construction), as the project proposes a 40 LF expansion of an existing water pipeline in the public right-of-way. Further, it has been determined that none of the six exceptions to the use of a Categorical Exemption are applicable (CEQA Guidelines Section 15300.2).
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES:
This project combines four Tier 1 essential capital improvement program projects on the City Council’s list of goals and priorities for FY 2023-2024: Annual Water System Priority Improvements, Annual Wastewater System Priority Improvements, Category 1 Storm Drain Repairs, and Annual Pavement Management Program.
ATTACHMENTS:
Attachment A – Contract with Bali Construction for 2023 Water, Wastewater, Pavement, and Storm Drain Project
Attachment B – Task Order for Dudek for Construction Management Exhibit A to Attachment B – Dudek proposal
Attachment C – Bali Construction’s Bid
4 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-1
This Construction Contract (“Contract”) is made and entered into by and between the City of Del Mar, a municipal corporation, hereinafter referred to as the "City," and Bali Construction, Inc. hereinafter referred to as the “Contractor” (collectively “Parties”).
RECITALS
WHEREAS, the City requires a general contractor to construct a Public Works project generally described as the 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT hereinafter referred to as the “Project.” WHEREAS, the Contractor represents itself as possessing the necessary skills and qualifications to construct the Project required by the City and possesses the required contractor’s license of the appropriate classifications.
NOW THEREFORE, in consideration of these recitals and the mutual covenants contained herein, and in consideration of the payments and agreements hereinafter mentioned, the Parties agree as follows:
1. CONTRACTOR'S OBLIGATIONS.
1.1 Contractor shall perform the scope of work shown in the Attachment A hereinafter referred to as the “Work”, as such term is defined by the Standard Specifications for Public Works Construction, latest version (GREENBOOK).
1.2 The Contractor agrees, at the Contractor's own proper cost and expense, to do all the Work and furnish all the materials, except such as are mentioned in the specifications to be furnished by the City, necessary to construct and complete the Work in a good, workmanlike and substantial manner and to the satisfaction of the City.
1.3 Said Work shall be performed in accordance with the Contract Specifications, Drawings, and Provisions annexed hereto; and in connection with the Reference Standards below:
Standard Edition
Standard Specifications for Public Works Construction
(“The GREENBOOK”)
2021
San Diego Regional Standard Drawings 2022
1.4 The Contractor shall maintain throughout the full term of this Contract all professional certifications and licenses required in order to comply with all City, State, and Federal laws in the performance of this Contract.
1.5 The Contractor shall pay wages to the Contractor's employees according to the current "General Prevailing Wage Rates" issued by the Department of Industrial Relations of the State of California. Pursuant to provisions of Section 1773 of the Labor Code of the State of California, the City Council has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification, or type of workman needed to execute this Contractor, from Director of the Department of Industrial Relations. These rates are available online with the California Department of Industrial Relations (www.dir.ca.gov). The Contractor shall post a copy of such rates at the job site and shall pay the adopted prevailing wage rates as a minimum.
ATTACHMENT A
5 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-2
The Contractor shall comply with the provisions of Sections 1725.5, 1771, 1773.8, 1774, 1775, 1776, 1777.5, 1777.6, 1813, and 1815 of the Labor Code.
1.6 The Contractor shall register with the Department of Industrial Relations (DIR) in accordance with California Labor Code sections 1771.1 and 1725.5 and the Contractor shall be subject to compliance monitoring and enforcement by DIR in accordance with California Labor Code section 1771.4.
1.7 Pursuant to and subject to the provisions of Section 1775 of the Labor Code, Contractor shall forfeit to City, as a penalty, the sum of up to two-hundred dollars ($200) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the stipulated prevailing rates for any Work done under this Contract, by it or by any subcontractor under it, in violation of the provisions of the Contract.
2. SECURITY FOR CONTRACTOR'S PROMISE TO PERFORM.
2.1 For contracts above $25,000, the Contractor shall post and maintain during the full term of this Contractsecurity for Contractor's promise to perform this Contract in the following forms and amounts:
A. The amount of the performance security shall be 100% of bid amount.
B. The form of the security shall be one of the following:
1. Cash;
2. Cashier's check made payable to the City;
3. A certified check made payable to the City;
4. A bond, executed by an approved surety insurer using the Performance Bond form found herein or a substitute form acceptable to and approved by the City, made payable to the City; or
5. The Contractor may elect to deposit securities of a value equivalent to the amount of the performance security in accordance with the provisions of section 22300 of the Public Contract Code. The City will make the final determination as to the value of the posted securities.
2.2 The City shall retain five percent (5%) of each payment due the Contractor under this Contract until completion and acceptance of the Project. The Contractor may elect to deposit securities of a value equivalent to the retention in accordance with the provisions of Section 22300 of the Public Contract Code and thereby become entitled to receive one hundred percent (100%) of the payments, without retention. The City will make the final determination as to the value of the posted securities. The amount of retention withheld may be reduced, or a portion of withheld retention may be returned, at the sole discretion of the City.
2.3 For contract amounts above $25,000, the Contractor shall file a payment bond using the Payment Bond form found herein or a substitute form acceptable to and approved by the City, in the amount of 100% of bid amount, with and subject to the approval of the Director of Public Works in accordance with Civil Code section 3247. 6 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-3
3. CONTRACT AMOUNT AND SCHEDULE.
3.1 The City agrees to pay and the Contractor agrees to receive and accept the prices set forth in the Bid Schedule attached hereto as Attachment B and incorporated by reference as full compensation for furnishing all materials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the work during its progress or prior to its acceptance, including those for well and faithfully completing the work and the whole thereof in the manner and time specified in the aforesaid contract documents and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the work, suspension or discontinuance of the work, and all other unknowns or risks of any description connected with the work.
3.2 Contractor agrees to complete the Work on 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT in a time period not to exceed ONE HUNDRED AND FORTY (140) calendar days per Section 6-3 of the Standard Specifications for Public Works Construction (GREENBOOK), commencing upon the date stated in the Notice To Proceed issued by the City. Construction shall not commence until the City has approved bonds and insurance.
4. TERMINATION OF CONTRACT.
In the event of the Contractor's failure to prosecute, deliver, or perform the Work as provided for in this Contract, the City may terminate this Contract by notifying the Contractor by certified mail of said termination.
5. STATUS OF THE CONTRACTOR.
The Contractorshall perform the services provided for herein in a manner of Contractor's own choice, as an independent Contractor and in pursuit of Contractor's independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished and the personnel assigned to the project. However, Contractor shall confer with the City as required to perform this Contract.
6. SUBCONTRACTING.
The Contractor’s ability to subcontract is limited by and must comply with the Subletting and Subcontracting Fair Practices Act, California Public Contract Code sections 4100 et seq. If the Contractor subcontracts any of the Work to be performed under this Contract, the Contractor shall be as fully responsible to the City for the acts and omissions of the Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in the Contract shall create any contractual relations between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor by the terms of the Contract applicable to Contractor's Work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 7 November 13, 2023 Item 08
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FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-4
7. ASSIGNMENT OF CONTRACT.
The Contractor has no authority or right to assign this Contract or any part thereof or any monies due thereunder to any other party without first obtaining the prior written consent of the City.
8. VERBAL AGREEMENT OR CONVERSATION.
No verbal agreement or conversation with any officer, agent or employee of the City, either before, during or after the execution of this Contract, shall affect or modify any of the terms or obligations herein contained nor shall such verbal agreement or conversation entitle the Contractor to any additional payment whatsoever under the terms of this Contract.
9. DISPUTES.
9.1 If a dispute should arise regarding the performance of this Contract, the following procedures shall be used to address any question of fact or interpretation not otherwise settled by agreement between the parties. Such questions, if they become identified as part of a dispute between persons operating under the provisions of the Contract, shall be reduced to writing by the complaining party. A copy of such documented dispute shall be forwarded to the other party involved along with recommended methods of resolution which would be of benefit to both parties. The party receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days of receipt of the letter.
9.2 If the dispute is not resolved, the aggrieved party shall send a letter outlining the dispute to the City to be resolved.
9.3 If the dispute remains unresolved and the parties have exhausted the procedures of this section, the parties may then seek remedies available to them at law.
9.4 Pursuant to Public Contract Code Sections 20104 and 9204, a claim by the Contractor for a time extension; payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract which is not otherwise expressly provided for or the claimant is not otherwise entitled to; or an amount the payment of which is disputed by the City, shall be dealt with as follows:
A. The claim shall be in writing and include the documents necessary to substantiate the claim. Claims must be filed on or before the date of final payment. Nothing in this subdivision is intended to extend the time limit or supersede notice requirements otherwise provided by the Contract for the filing of claims.
B. For all claims, pursuant to Public Contract Code Sections 20104 and 9204:
1. City shall respond in writing to any written claim within forty-five (45) days of receipt of the claim, or may request, in writing, within thirty (30) days of receipt of the claim, any additional documentation supporting the claim or relating to defenses or claims the City may have against the claimant. City shall identify the disputed and undisputed portion(s) of the claim in the written response. If City fails to issue a written statement, the claim is rejected in its entirety.
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FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-5
2. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the City and the claimant.
3. The City's written response to the claim, as further documented, shall be submitted to the claimant within fifteen (15) days after receipt of the further documentation or within a period of time no greater than that taken by the claimant in producing the additional information, whichever is greater.
4. Pursuant to Public Contract Code section 9204, any payment on any undisputed portion of the claim shall be processed and made within sixty (60) days after the public entity issues its written statement.
C. If the claimant disputes the City's written response, or the City fails to respond within the time prescribed, the claimant may so notify the City, in writing, either within fifteen (15) days of receipt of the City's response or within fifteen (15) days of the City's failure to respond within the time prescribed, respectively, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon a demand sent by registered or certified mail, the City shall schedule a meet and confer conference within thirty (30) days for settlement of the dispute. Within ten (10) business days after the meet and confer conference, City shall prepare a written statement describing portions of the claim in dispute and the portions of the claim that are disputed. Mediation Prerequisite: If following the meet and conference the claim or any portion remains in dispute, the parties agree that as a condition precedent to the initiation of litigation, the parties shall submit to non-binding mediation. The parties shall mutually agree to a mediator within ten (10) business days after the City’s response following the meet and confer conference. The parties shall make reasonable attempts to mediate within thirty (30) days of the meet and confer conference.
Mediation shall be subject to the following rules:
1. The mediation process shall be administered by a neutral organization agreed to by the parties and shall be confidential subject to Evidence Code Sections 1115 –1128 and 1152.
2. The costs for mediation will be shared equally by all parties. The expenses of witnesses shall be paid by the party producing such witnesses.
3. A single mediator shall be selected to mediate the dispute. At least ten (10) days before a scheduled session, each party shall provide the mediator a brief memorandum setting forth its position about the issues that need to be resolved. The brief shall be mutually exchanged between the parties. At the mediation session, the parties will be expected to produce required information for the mediator to understand and evaluate the issues presented.
4. The mediation process shall be considered terminated when: (1) in the mediator’s judgment, further efforts at mediation would not contribute to a resolution of the dispute between the parties; or, (2) by the execution of Settlement Agreement, which may be used as the basis for change order or other directive as appropriate; or, (3) written declaration of a party that it will no longer participate in further mediation proceedings. 9 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
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D. If mediation is unsuccessful, as a prerequisite to filing suit, the Contractor must file a claim pursuant to Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the period of time within which a claim must be filed shall begin from the time the claimant submits his or her written claim pursuant to subsection A until the time the claim is denied, including any period of time utilized by the meet and confer conference.
A civil action filed to resolve a claim subject to Section 9.4 of this Contract shall be subject to the provisions of Public Contract Code Sections 20104.4 and 20104.6.
10. HOLD HARMLESS.
10.1 The Contractor agrees to indemnify and hold the City; the City's officers, officials, employees and agents; the Engineer; and the Engineer’s officers, officials, employees and agents (together, the “City Indemnified Parties”), harmless from, and against any and all liabilities, claims, demands, causes of action, losses, suit damage, expenses and costs, including all costs of defense, expense costs and investigation expenses thereof, arising out of, or in any manner connected directly or indirectly to the acts, omissions or performance of Work by the Contractor or Contractor’s agents, employees, subcontractors, officials, officers or representatives. Upon demand, Contractor shall, at its own expense, defend the City Indemnified Parties from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs, regardless of whether or not such a claim, loss or liability is caused in part by a party indemnified hereunder.
10.2 By inspecting, approving or accepting the improvements, City shall not have waived the protections afforded herein to the City Indemnified Parties or diminished the obligation of Contractor, who shall remain obligated in the same degree to indemnify and hold the City Indemnified Parties harmless as provided above.
10.3 Contractor's obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of the City Indemnified Parties’ sole active negligence or willful misconduct.
11. RESPONSIBILITY FOR DAMAGE.
11.1 The Contractor shall obtain and maintain in full force and effect during the life of the Contract, contractual liability insurance for bodily injury liability and property damage liability assumed by the Contractor of all claims and lawsuits against the Contractor and his/her subcontractors arising out of or in connection with the Work to be performed.
Such insurance as is afforded by the policy to the Contractor for Contractual Property Damage Liability Insurance shall include coverage for property damage caused by blasting, collapse, structural injuries or damage to underground utilities. The policy shall not contain the so-called "x" "c" "u" exclusions.
11.2 The Contractor shall maintain vehicle liability, and property damage insurance in the amount of not less than $2,000,000 for one person injured in one accident, and not less than $2,000,000 for two or more persons injured in any one accident, and not less than 10 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-7
$2,000,000 with respect to any property damage involved and public general liability insurance in the amount of not less than $2,000,000 each occurrence or in the aggregate.
11.3 Evidence of insurance including Commercial General Liability, Workers’ Compensation, and Automobile Liability in compliance with the above requirements shall be furnished to the City by Certificate of Insurance. Such Certificate of Insurance shall be furnished prior to the commencement of Work under the Contract. The insurance policy shall provide that the policy shall remain in force during the life of this Contract and shall not be canceled, terminated, or allowed to expire without thirty (30) days prior written notice to City from the insurance company.
11.4 Such insurance shall be issued by a company or companies approved by the City, licensed and listed with "Insurance Organizations Authorized by the Insurance Commissioner to Transact the Business of Insurance in the State of California," and shall have a rating of A- or better.
11.5 Insurance coverage in the minimum amounts set forth herein shall not be construed to relieve the Contractor for liability in excess of such coverage, nor shall it preclude the City from taking such other actions as is available to it under any other provision of this Contract or otherwise in law.
11.6 The Contractor shall arrange for the policies to be so conditioned as to cover the performance of any changes or extra Work which may be required under the Contract.
11.7 The costs of this insurance shall be considered as included in the prices paid for the various Contract items of Work and no additional compensation will be allowed, therefore.
11.8 The Contractor shall either: (1) require each of its subcontractors to procure and to maintain Subcontractor's Public Liability and Property Damage Insurance and Vehicle Liability Insurance of the type and in the amounts specified, or (2) insure the activities of its subcontractors in its own policy in like amount.
11.9 The Contractor's policies shall contain an Additional Insured Endorsement naming as additional insured the City and its officers, consultants, agents, and employees while on the Project and acting within the scope of their duties. For any claims related to the Project, Contractor’s insurance coverage shall be primary insurance as respects City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be in excess of Contractor’s insurance and shall not contribute with it.
11.10 Prior to commencement of Work under this Contract, the Contractor shall furnish endorsements from each of the insurance companies.
11.11 The Contractor shall reimburse the City and the Engineer for all costs and expenses, including attorney's fees, incurred by said City and the Engineer, in enforcing the provisions of Section 11.0 of this Contract.
12. NOTICES.
Any notices to be given under this Contract, or otherwise, shall be served by certified mail and addressed and delivered as listed below:
11 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-8
City of Del Mar Bali Construction, Inc.
Attn: City Clerk Attn: Matthew Metoyer
1050 Camino del Mar 9852 E. Joe Vargas Way
Del Mar, CA 92014 South El Monte, CA 91733
[email protected] [email protected]
13. LIQUIDATED DAMAGES; EXTENSION OF TIME.
In accordance with Government Code Section 53069.85, CONTRACTOR agrees to forfeit and pay to CITY the sum of two hundred fifty dollars ($250) per day for each calendar day completion is delayed beyond the time allowed pursuant to paragraph 3 of this Contract.
Such sum shall be deducted from any payments due to or to become due to CONTRACTOR.
CONTRACTOR will be granted an extension of time and will not be assessed liquidated damages for unforeseeable delays beyond the control of and without the fault or negligence of CONTRACTOR, including delays caused by CITY. CONTRACTOR is required to promptly notify CITY of any such delay.
14. PERFORMANCE.
The City hereby promises and agrees with the Contractor to employ, and does hereby employ the Contractor to provide the materials and to do the Work according to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby contracts to pay the same at the time, and in the manner and upon the conditions hereinafter set forth, and the City and the Contractor for themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to the full performance of the covenants herein contained.
15. CONTRACT AUTHORITY OVER PROPOSAL.
It is further expressly agreed by and between the parties hereto that should there be any conflict between the terms of this instrument and the Bid or Proposal of the Contractor, then this instrument shall control, and nothing herein shall be considered as an acceptance of the said terms of said Proposal conflicting herewith.
16. CONTRACT DOCUMENTS.
The Contract consists of the following documents, all of which are component parts of the Contract as if herein set out in full, or attached hereto:
1. Notice Inviting Bid(s)
2. Information and Instructions for Bidders
3. Proposal
4. Contract
5. Worker's Compensation Certificate
6. Performance Bond
7. Payment Bond
8. Modifications to the Standard Specifications: General Provisions, Special Provisions, Construction Methods
9. Plans & Standard Drawings, Approved Submittals, Exhibits, and Site Photos
10. Addenda and approved Change Orders
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All the above-named Contract Documents are intended to be complementary. The Work required by one of the above-named documents and not by others shall be performed as if required by all. Any conflicts in terms or requirements of any of the Contract Documents shall be determined by the order of precedence set forth in the GREENBOOK.
17. ATTACHMENTS.
The following Contract Documents are attached hereto:
A. Scope of Work
B. Proposal/Bid Schedule/Schedule of Values
C. Worker's Compensation Certificate
D. Performance Bond
E. Payment Bond
18. NON-DISCRIMINATION.
Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, military or veteran status, gender, gender identity, gender expression, sexual orientation, or any other class protected under state, federal, or local law. Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to any class or category protected under state, federal, or local law and shall make reasonable accommodation to qualified individuals with disabilities. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.
19. CALIFORNIA LAW; VENUE/MISCELLANEOUS.
This Contract shall be construed and interpreted according to the laws of the State of California. Any action brought to enforce or interpret any portion of this Contractt shall be brought in the County of San Diego, California. Contractor hereby waives any and all rights it might have pursuant to California Code of Civil Procedure section 394.
20. CONSULTANT’S CERTIFICATION OF AWARENESS OF IMMIGRATION AND CONTROL ACT OF 1986.
Contractor certifies that Contractor is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC §§ 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors, and consultants that are included in this Contract.
21. NO WAIVER.
No failure of either the City or the Contractor t to insist upon the strict performance by the other of any covenant, term or condition of this Contract, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Contract shall constitute a waiver of any such breach of such covenant, term or condition. 13 November 13, 2023 Item 08
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FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-10
22. SEVERABILITY.
The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision unenforceable, invalid, or illegal.
23. CONFLICTS BETWEEN TERMS.
If an apparent conflict or inconsistency exists between the main body of this Contract and the Exhibits, the main body of this Contract shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Contract, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Contracts, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Contract.
24. SIGNING AUTHORITY.
The representative for each Party signing on behalf of a corporation, partnership, joint venture, or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist. [SIGNATURES ON THE FOLLOWING PAGE]
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AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-11
IN WITNESS WHEREOF, the Parties hereto have executed this Contract, which will be effective as of the date of the City’s execution of the Contract listed below.
CITY OF DEL MAR, BALI CONSTRUCTION, INC.
a municipal corporation a California Corporation
By: By:
Ashley Jones, City Manager Matthew Metoyer, Officer/Chief Estimator Date: Date:
APPROVED AS TO FORM:
Leslie E. Devaney, City Attorney
ATTEST:
________________________________
Sarah Krietor, Administrative Services
Manager/City Clerk
15 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-12
ATTACHMENT A – SCOPE OF WORK
Contractor shall refer to 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Specifications and Drawings for the description of the scope of work to be performed. (https://www.delmar.ca.us/DocumentCenter/View/8866/2023-Water-WastewaterPavement-Storm-Drain-Project-Specifications?bidId=108) 16 November 13, 2023 Item 08
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FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-13
ATTACHMENT B – BID SCHEDULE
Payment will be based on actual quantities furnished, installed, or constructed in accordance with the Base Bid Schedule of Values. Description of Bid Items included in Modifications to the Standard Specifications “Greenbook” Part 1 – General Provisions, Item 7-6 – Bid Items.
ITEM
NO.
DESCRIPTION ESTIMATED
QUANTITY
UNIT UNIT
PRICE
TOTAL
AMOUNT
GENERAL ITEMS
1 Mobilization and Demobilization 1 LS $ 99,000 $ 99,000 2 Traffic Control 1 LS $ 80,000 $ 80,000
3 Storm Water Pollution Control & Best
Management Practices
1 LS $ 10,000 $ 10,000
4 Construction Staking and Potholing 1 LS $ 60,000 $ 60,000 5 As-Built Drawings 1 LS $ 700 $ 700
WATER IMPROVEMENTS
Christy Lane
6 Install 6-inch PVC Water Pipeline on Christy
Lane
40 LF $ 1,000 $ 40,000
7 Install 2-inch Blow-off Assembly on Christy
Lane
1 EA $ 5,000 $ 5,000
8 Install New 1-inch Water Meter Service on
Christy Lane
1 EA $ 10,200 $ 10,200
Bellaire Street
9 Install 6-inch PVC Water Pipeline on Bellaire
Street
780 LF $ 565 $440,700
10 Install New 1-inch Water Meter Service on
Bellaire Street
15 EA $ 9,500 $142,500
11 Install 2-inch Blow-off Assembly on Bellaire
Street
2 EA $ 5,500 $ 11,000
12 Install 2-inch Air Release Valve on Bellaire
Street
1 EA $ 7,500 $ 7,500
13 Install Valves and Make Water System Tieins on Bellaire Street at Sta 40+00 and Sta 47+80.73
1 LS $ 83,007.50 $ 83,007.50
17 November 13, 2023 Item 08
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ITEM
NO.
DESCRIPTION ESTIMATED
QUANTITY
UNIT UNIT
PRICE
TOTAL
AMOUNT
WASTEWATER IMPROVEMENTS
Nob Avenue/Ocean View Avenue
14 Temporary Sewer Bypassing on Nob Avenue
and Ocean View Avenue
1 LS $ 7,500 $ 7,500
15 Install 6-inch CIPP Lining on Nob Avenue
and Ocean View Avenue
1,200 LF $ 81.00 $ 97,200
16 Manhole Rehabilitation on Nob Avenue &
Ocean View Avenue
4 EA $ 8,000 $ 32,000
17 Sewer Later Reconnection on Nob Avenue &
Ocean View Avenue
19 EA $ 300 $ 5,700
Jimmy Durante Blvd
18 Manhole Replacement at 2120 Jimmy
Durante Boulevard
1 LS $ 22,500 $ 22,500
STORM DRAIN IMPROVEMENTS
19 Install 18-inch RCP Storm Drain (Class 5)
Pipeline 43 LF $ 810.00 $ 34,830
20 Install 24-inch RCP Storm Drain (Class 5)
Pipeline 29 LF $ 1,200 $ 34,800
21 Install 18-inch RCP Storm Drain with Slurry
Backfill (Class 5) 44 LF $ 950 $ 41,800
22 Slurry Fill and Plug Existing Storm Drain
Pipe
25 LF $ 400 $ 10,000
23 Install Modified Winged Headwall 1 LS $ 6,500 $ 6,500 24 Install Straight Headwall per SDRSD D-30,
Type A 1 LS $ 6,500 $ 6,500
25 Install Curb Inlet per SDRSD D-2, Type B 1 EA $ 15,000 $ 15,000 26 Install Modified Storm Drain Curb Inlet per
SDRSD D-3, Type C 2 EA $ 19,000 $ 38,000
27 Storm Drain Improvements as directed by the
Public Works Director/City Engineer 1 Allowance
$ 50,000 $ 50,000
PAVEMENT IMPROVEMENTS
Nob Avenue/Ocean View Avenue
28 Cold Plane AC Pavement 2-inch and Install 2-
inch AC Overlay on Nob Avenue and Ocean
View Avenue
35,302 SF $ 2.75 $ 97,080.50
29 Replace Pavement Striping & Markings 1 LS $ 7,500 $ 7,500 Camino del Mar
30 Cold Plane AC Pavement 2” and Install 2”
AC Overlay on Camino del Mar from Court
Street to Jimmy Durante Blvd
58,310 SF $ 2.70 $157,437
18 November 13, 2023 Item 08
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AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-15
ITEM
NO.
DESCRIPTION ESTIMATED
QUANTITY
UNIT UNIT
PRICE
TOTAL
AMOUNT
31 Replace Pavement Striping & Markings 1 LS $ 18,000 $ 18,000 Nob Avenue/La Amatista Road
32 Install asphalt curb on western side of Nob
Avenue, south of La Amatista Road
40 LF $ 90 $ 3,600
TOTAL: $1,675,555
Total Base Bid (Items 1 through 32) of Project, in Numbers: $1,675,555 Total Base Bid (Items 1 through 32) of Project, in Words: One million, six hundred seventy five thousand, five hundred fifty five Dollars and zero Cents. 19 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-16
ATTACHMENT C - WORKER'S COMPENSATION CERTIFICATE
Section 3700 of the Labor Code provides in part as follows:
"Every employer except the state shall secure the payment of compensation in one or more of the following ways:
(a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self-insure either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his or her employees.”
I hereby certify that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's compensation or to undertake selfinsurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of this Contract.
CONTRACTOR'S NAME:
ADDRESS:
BOND NO.:
SIGNATURE:
PRINT NAME/TITLE OF SIGNER:
DATE:
20 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-17
BOND NO._____________________
ATTACHMENT D - PERFORMANCE BOND
WHEREAS, the City of Del Mar, a Charter City and municipal Corporation (“City”) on the _13th__ day of _November_______, 2023__, awarded to Bali Construction, Inc. (“Principal”) a contract for the work described as 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT; and
WHEREAS, said Principal is required under the terms of said contract to furnish a bond for the faithful performance of said contract.
NOW THEREFORE, We, the Principal and _______________________________ duly authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City in the penal sum of ________________ Dollars ($......................) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if Principal, his, her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements, in the said contract and any alteration thereof made as therein provided, on his, her or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers and agents, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and virtue.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or additions to the terms of the contract or to the work or to the specifications.
In the event suit is brought upon this bond by the City and judgment is recovered, the Surety shall pay all litigation costs and expenses incurred by City in such suit, including attorney's fees, court costs, expert witness fees and investigation expenses. 21 November 13, 2023 Item 08
Page C-18
IN WITNESS WHEREOF, identical counterparts of this
instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the _____ day of ________, 20___.
SURETY PRINCIPAL
By:
(Name)
(Title)
By:
(Name)
(Title)
By:
(Name)
(Title)
Signature of Attorney-in-Fact
NOTE:(a) Signature of those executing for Surety must be properly acknowledged. (b) The Attorney-in-fact must attach a certified copy of the Power of Attorney. 22 November 13, 2023 Item 08
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FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-19
ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF )
On, ________________________before me ____, a notary
public in and for said County and State, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within this instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on this instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 23 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-20
BOND NO._____________________
ATTACHMENT E - PAYMENT BOND
WHEREAS, the City of Del Mar, a Charter City and municipal Corporation (hereinafter designated as City), on the _13th__ day of _November_______, 2023__, awarded to__________Bali Construction, Inc.___________________________________________ (hereinafter designated as the Principal) a contract for the work described as follows:
2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT WHEREAS, said Principal is required by Chapter 5, Title 3, Part 6, Division 4 (including, specifically, Section 9550) of the California Civil Code to furnish a bond in connection with said contract.
NOW THEREFORE, We, the Principal and duly
authorized to transact business under the laws of the State of California, as Surety, are held and firmly bound unto the City in the penal sum of
Dollars ($ ) lawful money of the United States, said sum being not less than one hundred percent (100%) of the estimated amount payable by City under the terms of the above-referenced contract, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, pursuant to Section 9554 of the California Civil Code, if said principal, hers/his/its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay any of the persons named in Section 9100 of the California Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the California Revenue and Taxation Code, with respect to such work and labor, the surety or sureties will pay for the same in an amount not exceeding the sum hereinabove specified, and also, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the court.
This Bond shall inure to the benefit of any of the persons named in Section 9100 of the California Civil Code, so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement hereinabove described or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement hereinabove described, nor by any rescission or attempted rescission of the 24 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-21
contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond, and that his bond be construed most strongly against the surety and in favor of all persons for whose benefit such bond is given, by reason of any breach of contract between the City and Principal or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the California Civil Code, and has not been paid the full amount of his claim. Surety hereby waives notice of any such change, extension of time, addition, alteration or modification herein mentioned.
This bond is executed by Surety to and shall comply with the provisions of Chapter 5, Title 3, Part 6, Division 4 of the Civil Code and of Chapter 2, Title 14, Part 2 of the Code of Civil Procedure and said bond shall be subject to all of the terms and provisions thereof.
IN WITNESS WHEREOF this instrument has been duly executed by the Principal and Surety above named, on the day of , 20 .
SURETY PRINCIPAL
By:
(Name)
(Title)
By:
(Name)
(Title)
By:
(Name)
(Title)
(Attach required acknowledgements)
Signature of Attorney-In-Fact
25 November 13, 2023 Item 08
CONSTRUCTION CONTRACT BETWEEN THE CITY OF DEL MAR
AND BALI CONSTRUCTION, INC.
FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN PROJECT Page C-22
ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF )
On, ________________________before me , a notary public in and for said County and State, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within this instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on this instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 26 November 13, 2023 Item 08
1050 Camino Del Mar, Del Mar, CA 92014 | 858.755.9313 | www.delmar.ca.us November 13, 2023
Dudek SENT VIA EMAIL
Attn: Jason Linsdau/Joseph Monaco
605 3rd Street
Encinitas, CA 92024
[email protected]
RE: TASK ORDER & NOTICE TO PROCEED FOR CONSTRUCTION MANAGEMENT SERVICES FOR 2023 WATER, WASTEWATER, PAVEMENT, AND STORM DRAIN
PROJECT
This Task Order (TO) and Notice to Proceed (NTP) is issued pursuant to the terms and conditions contained in the as-needed Consulting Services Agreement between the City of Del Mar and Dudek (Consultant), the term for which is November 18, 2019, to November 19, 2024.
Consultant shall execute tasks related to the 2023 Water, Wastewater, Pavement, and Storm Drain Project, as described in the Consultant’s proposal dated October 10, 2023, and included as Exhibit A to this Task Order. The project cost for this Task Order shall not exceed $136,340. The project schedule shall commence upon execution of this Task Order/Notice to Proceed and be completed by June 30, 2024, to the satisfaction of the Principal Engineer, in accordance with the proposed Scope of Work included in Exhibit A.
The primary contact for this Task Order and invoicing is Karen Falk, Principal Engineer, who can be reached at [email protected] and (858) 375-9533.
Please sign and return an original copy of this Task Order to Denise Galvan, Management Analyst, City of Del Mar, 1050 Camino del Mar, Del Mar, CA 92014 and email a PDF copy to [email protected].
Approved by: Accepted by:
_____________________________________ _______________________________________ Ashley Jones Date Joseph Monaco Date
City Manager President
cc: Karen Falk, Principal Engineer
Mariel Cairns, Associate Management Analyst
Exhibit A: Dudek – Proposal for Construction Management and Inspection Services
ATTACHMENT B
27 November 13, 2023 Item 08
Task Description LABOR HOURS LABOR HOURS LABOR SUBTOTAL DIRECT COSTS TOTAL BUDGET Team Member
Dudek
Construction Manager
Dudek
Construction Engineer
Billable Rate $180.00 $140.00
1.0 Preconstruction Services
1.1 Preconstruction Meeting 4 2 $ 1,000 $ - $ 1,000
Task 1 Subtotal: 4 2 $ 1,000 $ - $ 1,000
2.0 Construction Services (140 Calendar Days)
2.1 Project Management 105 0 $ 18,900 $ 18,900 - $
2.2 Daily Inspection 0 650 $ 91,000 $ 91,000 - $
2.3 Progress Meetings 12 0 $ 2,160 $ - $ 2,160
2.4 RFI Processing 5 0 $ 900 $ - $ 900
2.5 Submittal Processing 20 0 $ 3,600 $ - $ 3,600
2.6 Progress Payments 12 0 $ 2,160 $ - $ 2,160
2.7 Change Orders 30 0 $ 5,400 $ - $ 5,400
Task 2 Subtotal: 184 650 $ 124,120 $ $124,120 -
3.0 Project Completion and Closeout (1 month)
3.1 Punch list and Record Drawings 15 30 $ 6,900 $ - $ 6,900
3.2 Prepare Final Change Order and Payment 20 0 $ 3,600 $ - $ 3,600
3.3 Prepare Closeout Documents and Turnover Project Files on Thumb Drive 4 0 $ 720 $ - $ 720
Task 3 Subtotal: 39 30 $ 11,220 $ 11,220 - $
$ 136,340
Hours Total 227 682
Hours per week Avg. 11 34
City of Del Mar
Our proposed fee is based on a 5 month total project duration for services based with 4 months of construction. Dudek will bill only actual hours worked per day on a time and material basis.
NOT-TO-EXCEED GRAND TOTAL:
DUDEK - FEE ESTIMATE
10/10/2023
Construction Management and Inspection Services for 2023 Water, Wastewater, Pavement and Storm Drain Project 28 November 13, 2023 Item 08
ATTACHMENT C
29 November 13, 2023 Item 08
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43 November 13, 2023 Item 08
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Amanda Lee, Principal Planner
Karen Brindley, Planning and Community Development Director Via Ashley Jones, City Manager
DATE: November 13, 2023
SUBJECT: Update on the Housing Element Implementation Work Program REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council receive the update on the Housing Element Work Program.
SUMMARY:
The City’s certified 6
th Cycle Housing Element applies to the planning period (2021-2029) and includes 45 action programs with specific milestones that are required to be timely completed.
Regular status updates are provided annually to the City Council and the California Housing and Community Development Department (HCD) in accordance with State law. The official Annual Progress Report on Housing Element implementation progress will be provided to the City Council in March 2024 prior to submittal to HCD by April 1. To facilitate timely implementation of the work program, this update is being provided to identify the volume of work and actions that must be completed in overlapping timeframes over the next year.
There are over 20 remaining Housing Element programs that must be completed by December 2024. These projects are in various stages of processing and most require formal actions by the Planning Commission, City Council, and California Coastal Commission (CCC). However, there are only twelve regularly scheduled Planning Commission meetings and twenty-one City Council meetings during this timeframe. Limited staff and consultant resources are other factors that affect the ability to timely process each of these items.
DISCUSSION/ANALYSIS:
Following is a summary of the two housing projects with Local Coastal Program (LCP) amendments that are currently in process with the CCC:
• Public Facilities (PF) and Public Parkland (PP) Zoning and LCP Amendments – This is a package of clean-up amendments that are necessary to correct errors on the City’s LCP Land Use Designation Map and Zoning Map and implement one milestone identified in the Housing Element as required for Program 1H (Public Facilities). The 1 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
Ordinance/LCPA was adopted by the City Council January 9, 2023. Action by the CCC is anticipated to occur by June 2024. Timeline: Present to June 2024. • Senate Bill 9 Implementation Ordinance/LCPA – This Ordinance/LCPA was adopted by the City Council on June 19, 2023. It is necessary to implement State housing law and is identified in the Housing Element as one milestone required for implementation of Program 6B (Affirmatively Furthering Fair Housing) as a strategy to create housing opportunities for moderate income, lower income, and special needs households. Action by the CCC is anticipated to occur by August 2024. Timeline:
Present to August 2024.
Following is a summary of three housing special projects currently in process for City Council approval prior to January 1, 2024:
• Accessory Dwelling Unit (ADU) Regulations Ordinance/LCPA – This Ordinance/LCPA was presented to the City Council on October 16, 2023, and was continued after Council discussion and requests for additional revisions. The revised Ordinance/LCPA will be presented to the City Council on December 4, 2023, for introduction of the Ordinance and followed by a second reading/adoption hearing on December 18, 2023. The Housing Element requires City Council action to be completed by December 2023 in order to implement various Housing Element programs including the following programs focused on creating affordable housing options: Program 2F Tiny Homes, Program 2A ADU Incentive Program, Program 2B ADU Amnesty Program, Program 5A Expansion of Existing Multi-Unit Development, and Program 6B Affirmatively Furthering Fair Housing. Following City Council adoption, the Ordinance/LCPA must be submitted to HCD within 60 days for review and comment. Once HCD’s response is provided to the City in writing, the City will have 30 days to provide a written response back to HCD. The Ordinance/LCPA must also be submitted to CCC for review and final certification in order for the Ordinance/LCPA to take effect. Timeline: Present to June 2025 (estimate for final completion of CCC actions).
• ADU Incentive Program Ordinance – This Ordinance was scheduled for City Council consideration on October 16, 2023, and was continued to a future date with the ADU Regulations Ordinance/LCPA and ADU Amnesty Program. The ADU Incentive Program Ordinance will be presented to the City Council on December 4, 2023, for an introduction of the Ordinance and followed by a second reading/adoption hearing on December 18, 2023. The Housing Element requires City Council action to be completed by December 2023 in order to implement Program 2A. Once adopted, the City will begin work to promote the new incentives available per the Housing Element Program 2C commitment. Timeline: Present to June 2024.
2 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• ADU Amnesty Program – The proposed ADU Amnesty Program was scheduled to be presented to the City Council on October 16, 2023, and was continued to a future date with the ADU Regulations Ordinance/LCPA and ADU Incentive Program. The ADU Amnesty Program will be presented to the City Council on December 4, 2023 for adoption of a Resolution and City Council Policy. The Housing Element requires City Council action to be completed by December 2023 in order to implement Program 2B. Once adopted, the City will begin work to promote the new Amnesty Program and incentives available per Housing Element Program 2C. Timeline: Present to June 2024.
Following is a summary of four housing-related special projects in process for City Council approvals prior to June 30, 2024:
• Amendments to Facilitate Affordable Housing in the Central Commercial (CC) Zone and PF Zone – The City is required to take actions to amend the Community Plan, Del Mar Municipal Code, and LCP to allow mixed use development with an affordable housing component up to a density of at least 20 dwelling units per acre as a permitted use. This is required to implement actions including a Community Plan amendment, Zoning Code amendment, and LCP amendment as identified in the Housing Element for Program 1C and Program 1H. The City is seeking environmental consulting services for preparation of an environmental document and processing of amendments to facilitate affordable housing in the Central Commercial (CC) Zone and the Public Facilities (PF) Zone. The Housing Element requires the City Council decisions to be completed by April 2024. This project is required to create housing capacity per the certified Housing Element plan and must be timely completed or there are potential penalties that can be imposed by the State. City staff anticipates a Planning Commission public hearing in February 2024 prior to City Council public hearings in March/April 2024. Following City Council adoption, the Ordinance/LCPA must be submitted to CCC for review and final certification for the Ordinance/LCPA to take effect. See graphic below for planned timing through Council adoption. Timeline:
Present to October 2025 (estimate for final completion of CCC actions). 3 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Update to Density Bonus Regulations for Compliance with State law – The City is required to repeal and replace its existing density bonus regulations (DMMC Chapter 30.90) in order to comply with State law. Program 1G requires this Ordinance to be completed by June 2024. City staff anticipates presentations to the Planning Commission in March 2024 and City Council in April/May 2024. See graphic below for planned timing through Council adoption to align with the Inclusionary Housing and Condominium Conversion Ordinance. Timeline: Present to June 2024. • Update to Inclusionary Housing and Condominium Conversion Regulations – The City is required to update its existing inclusionary housing regulations (DMMC Chapter 24.21) to comply with State law. Program 4D Inclusionary Housing and Program 4E Condominium Conversions are required to be completed by June 2024.
This will include a condominium conversion-related item for implementation of the North Commercial (NC) Zoning Ordinance Referendum settlement agreement. City staff anticipates a Planning Commission public hearing in March 2024 and City Council public hearings in April/May 2024. See graphic below. Timeline: Present to June 2024.
4 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Short Term Rental (STR) Ordinance/LCPA - The City held public discussions for this special project in the July, September, and October 2023 City Council meetings where the Council reviewed data on existing STRs, identified Guiding Principles, reviewed past court and CCC decisions, and provided direction. Staff will seek additional policy direction from the City Council on January 22, 2024. The City is required to adopt a STR Ordinance/LCPA by December 2024 per Housing Element Program 5C. This will include processing of a related component per the settlement agreement for the North Commercial (NC) Zoning Ordinance Referendum. City staff anticipates a Planning Commission hearing in April 2024 and City Council public hearings in May/June 2024. Once the City Council adopts the Ordinance/LCPA, it must be submitted to the CCC for review and certification to become effective. See graphic below for planned timing through Council adoption. Timeline: Present to December 2025 (estimate for final completion of CCC actions).
Following is a summary of housing-related special projects in process with pending milestones that have been adjusted in consideration of needs for the overall work program:
• Community Plan Update: Environmental Justice and Safety Elements – The City is required to amend the Del Mar Community Plan to adopt a new Environmental Justice Element per Program 6E and Program 6B to Affirmatively Further Fair Housing. The City is also required to update the existing Safety Element per Program 6H. This update was required to have been completed by June 2023 per the Housing Element, but has been delayed due to workload constraints. The City will be utilizing 72 hours of free technical assistance available from SANDAG to resume work in January 2024 and supplement the staff work completed to-date. See graphic below.
Staff anticipates presenting the item to Planning Commission in May 2024 and City Council in June/July 2024. Timeline: Present to July 2024. 5 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• New Overlay Zone and Incentives to Facilitate Creation of Affordable Housing - The City is required to create new incentives for multi-dwelling unit development with an affordable housing component to satisfy multiple programs in the Housing Element.
In January 2023, Stephen Dalton Architects and Keyser Marston Associates presented the findings of affordable housing economic analysis and feasibility studies to the City Council relating to various sites identified in the Housing Element sites inventory. The report included recommendations to create a new Affordable Housing Overlay Zone with site-specific incentives per Program 1D. The City is seeking environmental consulting services to facilitate processing of the Zoning Code amendment, LCP amendment, and Rezone actions to implement Program 1D and Program 1I (Streamlining and Incentives for Affordable Housing). Program 1I has a deadline of December 2023 per the Housing Element, which will be partially addressed by a separate Ordinance for the ADU Incentive Program per Program 2A.
Due to constrained staff resources, the additional streamlining and incentives specific to multi-unit development are being processed separately. City staff will coordinate these efforts with the Objective Design Standards work plan described below. Prior to bringing forward an Ordinance to create the new overlay zone (with site-specific incentives and rezone properties as applicable to apply the new overlay zone), staff anticipates drafts will be available in early 2024 prior to the Planning Commission and City Council public hearings in spring/summer 2024. Following City Council adoption, the Ordinance/LCPA must be submitted to CCC for review and final certification to take effect. See graphic below. Timeline: Present to December 2025 (estimate for final completion of CCC actions).
6 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Objective Design Standards – The City is required to adopt Objective Design Standards by June 2024 per Program 6G. Objective standards are defined as measurable, verifiable, and involve no personal judgement. The project is intended to facilitate affordable housing development and maintain community character in accordance with the Del Mar Community Plan and the LCP. The City has a consultant contract with Ascent Environmental Inc. to assist staff with creation of these standards.
The Design Review Board will serve as the advisory body for development of the standards. The Planning Commission (advisory) and City Council will serve in their typical legislative roles for adoption of the Ordinance. City staff anticipates a “kick off” public workshop in December 2023, followed by public input via a public survey and DRB meetings in early 2024, and Planning Commission and City Council consideration of the Ordinance in spring/summer 2024. The City has Cycle 2 Housing Acceleration Program (HAP) Grant Funds for the project. See grant summary and graphic below. The project may require additional time to accommodate public participation through December 2024, which aligns with the timing per the HAP Grant.
Timeline: Present to December 2024.
HAP Grant Cycle 2 Grant #2: $101,000 Grant (Objective Design Standards) Project Grant Funds Matching Funds
Program 6G
Objective Design
Standards
$101,000 $5,000
In-Kind staff time: $30,000 (300 hours)
• Availability of Fair Housing Materials in English and Spanish – Consistent with Housing Element Program 6B, the City is required to make fair housing materials available to the public in English and Spanish by June 2024. Timeline: May-June 2024.
Following is a summary of three special projects in process to facilitate affordable housing on public sites with upcoming milestones that must occur by April, June, and December 2024:
7 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Planning and Development of Affordable Housing on State Fairgrounds - The City is seeking to establish control of a one to two-acre site within the State Fairgrounds property to develop lower income housing consistent with Housing Element Program 3A. The City is in process of finalizing a draft Exclusive Negotiating Rights Agreement (ENRA) between the City and 22nd DAA. Staff anticipates the ENRA will be ready for City Council and 22nd DAA Board consideration in early 2024.
This agreement is required to be completed by April 2024.
On October 13, 2023, SANDAG allocated $1.5 million in Cycle 2 HAP Grant Funds to Del Mar to fund studies related to the plan for affordable housing on the Fairgrounds including pre-development studies, environmental assessments, and related affordable housing consulting services.
HAP Grant Cycle 2 Grant #1: $1.5 million Grant (Fairgrounds Housing) Project Grant Funds Matching Funds
Program 3A Lower
Income Housing -
State Fairgrounds
Property in Del Mar
$1.5 million $150,000
In-Kind staff time: $150,000 (1,500 hours)
Once an agreement is in place, the City will coordinate with 22nd DAA to conduct predevelopment studies to identify more precisely the site location and project description for an affordable housing project and information relating to:
• Site design feasibility
• Supplemental economic studies, financial feasibility analysis, and identification of property encumbrances
• Transportation and traffic studies to assess mobility and access • Environmental assessment work (i.e., geotechnical/soils analysis, biology report, wetlands delineation, sea level rise resiliency) • Assessment of infrastructure-related conditions (i.e., water, sewer, stormwater, roadways, access improvements, flood control/SLR resiliency) During the ENRA period, the City will also be negotiating the terms of a long-term ground lease for the selected project site.
The information collected will facilitate negotiations of the ground lease, selection of a developer, and future agreements for developer construction and management and operation of the affordable housing once complete. Subsequent project phases will be conducted by the selected developer, including the project environmental analysis, design (conceptual, preliminary, final), entitlement approvals, public improvements, and construction by June 2031. Project Timeline: Present to June 2031 (Attachment A).
8 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Affordable Housing on City-Owned Sites on 10th Street and 28th Street – In June 2022, the City completed feasibility studies confirming that the two City-owned sites at 10th Street and 28th Street identified in the Housing Element sites inventory have capacity for at least seven lower-income units. Program 3B requires the City, by April 2024, to contact Habitat for Humanity and/or similar non-profit organizations to solicit interest in a potential partnership for two small affordable housing developments per the Housing Element. A City Council decision on whether to proceed with such a project or an alternative strategy (i.e., land disposition) is required by January 2025. If building permits for at least seven lower income units are not issued by January 2027, then the City will be required to identify alternative sites with appropriate zoning and development standards by December 2027. See graphic below. Timeline: Present to April 2029.
• Conceptual Living Levee Design – The conceptual design for a living levee along the banks of the San Dieguito River is an adaptation measure and special project in process to implement the City’s adopted plan for climate change and sea level rise.
The City Council identified construction of a “living levee” with vegetated berms between the San Dieguito River and existing development as a priority adaptation measure to provide flood risk reduction and minimize the projected effects of rising sea levels in accordance with the City’s Sea Level Rise Adaptation Plan (Environmental Science Associates 2018). The living levee is a type of natural flood adaptation infrastructure that can provide coastal resilience, stabilize the shoreline, and protect adjacent communities from flooding. In June 2024, the City’s consultant (Moffat & Nichol) will present the conceptual design and options for grant funding to develop the project. The living levee is a vegetated berm that can provide flood adaptation to support development of housing in accordance with the Housing Element, including Program 1D (Overlay Zone sites in the Floodplain), Program 3A (Fairgrounds), and Program 3B (28th Street lot). Timeline: Present to June 2024 (preliminary conceptual design phase only).
Following is a summary of two additional housing-related special projects that are required to be completed prior to December 31, 2024:
9 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
• Efforts to Address the Needs of Special Needs Households – This relates to Housing Element Program 4A (residential care facilities) and Program 4B (supportive housing, transitional housing, and other housing needs for the homeless and at-risk populations). The City must process an Ordinance by December 2024 to amend the Zoning Code and LCP to update land use categories and permitted use allowances for residential care, transitional housing, and supportive housing. The City has HAP grant funds to support consulting services, preparation of informational handouts, public outreach, policy formation and regulations in compliance with State and Federal law, and processing of the Resolution and Ordinance through noticed public hearings of the Planning Commission, City Council, and Coastal Commission. The City is preparing to initiate the consultant selection process by December 2023. City staff anticipates a Planning Commission public hearing in August 2024 and City Council public hearings in September/October 2024. The Ordinance/LCPA must be submitted to CCC for review and final certification to take effect. See grant summary and graphic below. Timeline: Present to December 2025 (estimate for final completion of CCC actions).
HAP Grant Cycle 2 Grant #2: $80,000 Grant (Programs 4A/4B) Project Grant Funds Matching Funds
Program 4A/4B
Efforts to Address
Needs of Special
Needs Households
$80,000 $5,000
In-Kind staff time: $20,000 (200 hours)
• Solar Energy Partnership – The City will partner with Renewable Cities San Diego to create a program to install solar panels on multi-unit, low-income housing units.
The intent is to meet City renewable energy goals in the Climate Action Plan and provide cost savings on utilities for low-income households per Housing Element Program 6D. City staff will coordinate these efforts with the work plan in process for implementation of the Climate Action Plan. Timeline: June 2024 to December 2024. 10 November 13, 2023 Item 09
City Council Agenda Report
Update on Housing Work Program
November 13, 2023
HOUSING IMPACT: The City’s certified 6
th Cycle Housing Element includes 45 action
programs with specific milestones that are required to be timely completed. As identified above, there are over 20 remaining Housing Element programs that must be completed by December 2024.
FISCAL IMPACT: There is no fiscal action to be taken by the City Council related to this agenda item. The identified match funds are already available in the respective special project accounts for each of the identified special projects. The HAP grant funding identified for Housing Element Programs 3A, 6G, 4A, and 4B will offset costs for implementation of corresponding special projects included in the work program for Fiscal Years 2023-24 and 2024-25.
ENVIRONMENTAL IMPACT: The requested action is exempt from the California Environmental Quality Act (CEQA) pursuant to the common-sense exemption (CEQA Guidelines Section 15061(b)(3)) because CEQA only applies to projects that have the potential for causing a significant effect on the environment. This status update is administrative in nature and would have no significant effect on the environment.
NEXUS TO CITY COUNCIL GOALS AND PRIORITIES: Implementation of the certified Housing Element is a City Council identified priority. This item relates to multiple City Council priority special projects that are required to be timely implemented.
ATTACHMENTS:
Attachment A – Schedule for Fairgrounds Affordable Housing Project Attachment B – Housing Element Program Table
11 November 13, 2023 Item 09
1 Fairgrounds Affordable Housing Project Schedule for Cycle 2 HAP Grant Agreement The following scope of tasks and timeline (pre-development through construction phases) was prepared based on input from the City’s affordable housing consultants and special legal counsel based on their prior experience and expertise with affordable housing development projects. The proposed timing complies with the HAP Grant criteria. However, it should be noted that many variables can affect project timing as it relates to processing steps following the pre-development phase (Task 2).
Task No. Task Description Outcome/Output Deliverables
1 Develop and execute Exclusive
Negotiations Rights Agreement
with 22nd DAA
(Draft agreement and initial
discussions between agencies at
staff level will have occurred prior
to NTP)
Secure signed agreement between the City and
the California 22nd DAA
Final Exclusive Negotiation Rights
Agreement
By April 2024
2 Pre-Development Studies/Due
Diligence
Site design feasibility
Supplemental economic studies, financial
feasibility analysis, and identification of property
encumbrances
Transportation and traffic studies to assess
mobility and access
Environmental assessment work (i.e.,
geotechnical/soils analysis, biology report,
wetlands delineation, sea level rise resiliency)
Assessment of infrastructure-related conditions
(i.e., water, sewer, stormwater, roadways,
access improvements, flood control/SLR
resiliency)
Consultant studies and reports
By Dec 2025
3 Negotiate Purchase and Sale
Agreement or Right to Ground
Lease
Agreement or Lease to facilitate developer
solicitation
Agreement or Lease
By Oct 2025
Attachment A
12 November 13, 2023 Item 09
2 4 Developer solicitation City to follow local process for preparation of RFP/RFQ and solicitation of proposals for
competitive selection process as stated in
RFP/RFQ request. The highest ranked firm will
be selected considering teams relevant
experience in affordable housing development,
coastal development experience, familiarity with
the City of Del Mar, approach to the work, and
cost.
Final RFP/RFQ
By July 2026
5 Exclusive Negotiations Rights
Agreement with Developer
Negotiate ENRA terms with developer Agreement
By Oct 2026
6 City Land Use Entitlement and
CEQA
Developer to process applications for all
discretionary approvals.
Draft and Final CEQA Documents
By July 2027
7 Disposition and Development
Agreement with Developer
Developer due diligence, negotiation of business
terms and execution of agreement. Planning
Commission review and recommendation and
City Council approval of DDA required.
DDA Agreement
By Aug 2028
8 Coastal Commission Review and
Approval of Coastal Development
Permit
Coastal Commission review and approval of
Coastal Development Permit is required for
approval of affordable housing development on
the State Fairgrounds property.
Coastal Development Permit
By Aug 2028
9 Secure other Project Financing
(i.e., State, County, Tax Credit
Awards)
Developer submits applications for State and
County funding awards and low income housing
tax credit award. (Tax credit process may
require multiple rounds of applications.)
Award of Funding
By June 2029
10 Purchase and Sale Agreement or
Right to Ground Lease
Transferred
Agreement or Lease is needed for land
transaction closing to facilitate construction. May
require City and 22nd DAA action depending on
structure of PSA.
Agreement or Lease
by June 2029
11 Construction and Lease-Up Commence and complete construction of affordable housing project. Complete lease-up
and permanent loan conversion.
Project Construction
By June 2031
13 November 13, 2023 Item 09
1 Progress on Housing Element Programs
Program Objective Timeframe/Progress Completeness
1 1A North Commercial Finalize Coastal Commission certification of local approvals gained during 5th Cycle
to allow 20 du/ac on select North
Commercial (NC) Zone parcels
(Ordinance/LCPA)
Obtained Coastal Commission final certification in
May 2022 prior to the June 2022 Housing Element
deadline
Complete
2 1B Professional Commercial Finalize Coastal Commission certification of local approvals gained during 5th Cycle
to allow 20 du/ac in the Professional
Commercial (PC) Zone (Ordinance/LCPA)
Obtained Coastal Commission final certification in
May 2022 prior to the June 2022 Housing Element
deadline
Complete
3 1C Central Commercial Amend the Central Commercial (CC) Zone to allow 20 du/ac (Community Plan
Amendment and Ordinance/LCPA)
• Task order for Environmental consultant - Oct
2023
• Housing Element deadline April 2024
• Process Plan Amendment Resolution/Zoning
Ordinance/LCPA to modify CC zone density
- PC February 2024
- Council March/April 2024
- Submit to CCC
In Progress
4 1D Affordable Housing Overlay
Zone
Conduct Phase II feasibility studies to
evaluate whether to create overlay zone.
Coordinate with stakeholders (hotels,
Plaza, multi-dwelling in RM zones) and
present findings to City Council.
(economic study; Ordinance/LCPA)
• Completed site-specific feasibility studies of
small sites, non-vacant sites, vacant parcels on
10th Street (CC zone), RM-South hypothetical
non-conforming multi-unit, and Del Mar Plaza
• Presented to Council January 23, 2023
• Task order for Environmental consultant - Oct
2023
In Progress
Attachment B
14 November 13, 2023 Item 09
2 • Process Ordinance/LCPA to create Affordable
Housing Overlay Zone by December 2025
- Draft by March 2024
- PC June 2024
- Council July/Sep 2024
- Submit to CCC
5 1E Rezone of Vacant Land on North
Bluff/South Stratford Properties
(contingency program only)
If City is unable to reach agreement with
State, then must implement rezone to
20-25 du/ac by right via overlay zone to
create capacity for at least 54 lower
income units
This contingency program is required by April 2024
only if Program 3A is not completed. If required,
City would complete General Plan Amendment and
Zoning Ordinance/LCPA
N/A
(need for
contingency
program has
not been
activated)
6 1F Manufactured Housing Code update needed per State law (Ordinance)
City Council adopted Ordinance in September 2023;
and the Ordinance took effect prior to the
December 2023 Housing Element deadline
Complete
7 1G Density Bonus Update needed per State law
(Ordinance/LCPA)
• Housing Element deadline June 2024
• Process Ordinance/LCPA for adoption by June
2024 with Programs 4D/4E inclusionary/condos
- PC March 2024
- Council April/May 2024
In Progress
8 1H Public Facilities Zone Process LCPA for 28th Street lot by December 2022. Amend PF zone by April
2024 to clarify that affordable housing is
allowed use in PF zone (with Shores Park
excluded). (Ordinance/LCPAs)
• Completed Council Adoption of Ordinance/LCPA
for 28th Street lot in PF zone - January 2023; CCC
certification of LCPA is pending
• Housing Element deadline April 2024
• Process Plan Amendment Resolution/Zoning
Ordinance LCPA to modify PF zone
- PC February 2024
- Council March/April 2024
In Progress
15 November 13, 2023 Item 09
3 - Submit to CCC
• Coordinate with Habitat for Humanity or similar
non-profit by April 2024 for development of Cityowned sites at 10th Street and 28th Street 9 1I Streamlining and Incentives for
Affordable Housing
Conduct Phase II economic study and
zoning assessment. Evaluate existing
regulations and identify potential
incentives. Process ordinance to
establish incentives available to facilitate
creation of affordable housing. (Studies
and Ordinance/LCPA)
• Completed Phase II feasibility studies and
consideration of incentives - January 2023
• Presented to Council January 23, 2023
• In December 2023, City Council will consider
adoption of ADU incentives to create low income
units in multi-unit development
• December 2023 deadline per Housing Element
• Process second Ordinance with Program 1D:
- Draft by March 2024
- PC June 2024
- Council July/Sep 2024
- Submit to CCC
In Progress
10 1J Establish Program for
Coordination with Affordable
Housing Developers
Establish program for regular outreach
with San Diego Housing Federation and
affordable housing developers. Use for
mutual benefit to gain insight towards
development of realistic strategies to
facilitate affordable housing, including
strategies that can work at the
Fairgrounds. (outreach/meetings)
City staff coordinated with San Diego Housing
Federation staff. Additional ongoing outreach and
coordination to occur via San Diego Housing
Federation subcommittees when new housing
opportunities become available
Ongoing
11 1K Infill Affordable Housing on NonVacant and Small Sites Conduct Phase II economic study and
zoning assessment of privately-owned
sites in sites inventory. Identify potential
changes to facilitate affordable housing
Completed Phase II site-specific studies
demonstrating feasibility of non-vacant and small
sites in NC and PC zones - January 2023
Complete
16 November 13, 2023 Item 09
4 via Ordinance/LCPA per Program 1I.
(Economic study/zoning assessment)
12 2A Extend and Enhance ADU Pilot
Program - Incentive Program
Process an extension of the current
incentive program by May 2022. Prepare
an economic study and zoning
assessment. Process Ordinance to
incorporate additional incentives and/or
program modifications to increase
participation in the program. (Ordinance
to add incentives/modify program)
• Adopted an Ordinance extending the current
incentive program - May 2022
• Completed feasibility study and identified
incentives to expand program - January 2023
• Process Ordinance to create new incentives
- PC July-September 2023
- Council October-December 2023
• In December 2023, City Council will consider
adoption of ADU incentives to create low income
units in multi-unit development
• December 2023 deadline per Housing Element
In Progress
13 2B ADU Amnesty Program Establish ADU Amnesty Program to allow owners with unpermitted ADUs to
legalize the ADUs so that the City can
count them toward its inventory. The
intent is to spur production of units for
moderate and low-income households.
(Resolution/Ordinance)
• Obtain determination from HCD as to whether
legalized units (made available for rent) via this
program can be counted towards RHNA
• Data collection started April 2023
- PC July-September 2023
- Council October-December 2023
• In December 2023, City Council will consider
adoption of Resolution to create program
• December 2023 deadline per Housing Element
In Progress
14 2C Promotion of Deed-Restricted
Low Income ADUs
Develop outreach materials to promote
deed restricted low income ADUs with
goal to reach at least 15 low income
ADUs to meet RHNA. (web
update/outreach)
• Created dedicated web page and newsflash
articles as initial outreach effort - May 2022
• Additional outreach and promotion will occur
after completion of ADU Programs 2A and 2B
In Progress
17 November 13, 2023 Item 09
5 15 2D Tracking of ADU Progress ADU progress is reported as part of Annual Progress Reports that are
presented to the City Council and
submitted to HCD on an annual basis in
March each year. (spreadsheet tracking
& reports to Council)
Annual Progress Reports (APR)to-date show that
ADU production in 2021 and 2022 has been the
most successful strategy toward local production of
new housing units in the moderate and above
moderate household income categories
Ongoing
16 2E Mid Cycle ADU Production
Evaluation
Conduct a mid-cycle progress evaluation
that accounts for the cumulative 2021-
2024 production as reported to HCD in
April 2025. Process additional
amendments to the ADU Incentive
Program if needed to spur production of
ADUs for low-income households
(spreadsheet tracking & potential
ordinance)
APR reports identifying ADU production status will
continue to be completed on annually. Processing
of an ordinance to further amend the ADU
Incentive Program (Program 2A) will only be
required if, by April 2025, the City has not reached
its goal of at least 15 ADUs for low income
households.
Not started
17 2F Tiny Houses Process an ordinance to clarify tiny
houses are allowed in accordance with
the ADU regulations. Identify additional
circumstances where tiny houses can be
allowed. The intent is to spur production
of units for moderate and low-income
households. (Ordinance/LCPA)
• Process Ordinance with ADUs
- PC July-September 2023
- Council October-December 2023
- Submit to CCC
• In December 2023, City Council will consider
adoption of ADU Ordinance
• December 2023 deadline per Housing Element
In Progress
18 3A Agreement with State to Build
Affordable Housing Units on State
Fairgrounds property
Initiate process to secure a binding
agreement with the State’s 22nd District
Agricultural Association (DAA) and
General Services Department. The
objective is to secure approval of a
binding agreement with the State by
• Completed Phase I economic study of market
conditions, assessment of multi-unit product
types, and identification of potential funding
sources for affordable housing on State
Fairgrounds – June 2022
In Progress
18 November 13, 2023 Item 09
6 April 2024 that will allow development of
at least 54 lower income units on the
State Fairgrounds property (located
within the City of Del Mar) that will allow
the units to be counted towards the
City’s RHNA. (agreement)
• Executed agreement with affordable housing
consultant - July 2022
• Obtained support letters for housing at
Fairgrounds from SANDAG and County
Supervisor Lawson-Remer
• Supplemental housing concepts for southwest
location on Fairgrounds – April 2023
• Awarded Cycle 1 and 2 HAP Grant funds
• Ongoing coordination with 22nd DAA is in process
to secure binding agreement by April 2024
19 3B Feasibility/Suitability of
Affordable Housing on Publicly
Owned Sites
Conducted Phase I economic study and
zoning assessment of three publicly
owned sites in the sites inventory
including the State Fairgrounds and two
City-owned vacant lots on 10th Street and
28th Street. Prepared site-specific
concepts for multi-unit product types
that are eligible for tax credit programs,
estimated costs, and identified potential
funding sources for development of
affordable housing. Site-specific
implementation via Programs 1H and 3A.
(Economic study/zoning assessment)
• Completed Phase I feasibility studies of publiclyowned properties – June 2022 • By April 2024, contact Habitat for
Humanity/non-profits to solicit interest in a
partnership at 10th Street and/or 28th Street
• Seek City Council decision by 2025 whether to
pursue project or alternative strategy (i.e., land
disposition) and proceed with necessary
entitlements and processing
• Identify alternative sites to develop within one
year if at least 7 building permits have not been
issued by 2027
In Progress
20 4A Residential Care Facilities Process Ordinance for compliance with State law (Ordinance/LCPA)
• Secured funding - Cycle 2 HAP Grant funds
awarded Oct 2023 through December 2025
• Initiate consultant selection December 2023
• Housing Element deadline December 2024
• Process Ordinance/LCPA with Program 4B
- PC August 2024
- Council Sept/Oct 2024
In Progress
19 November 13, 2023 Item 09
7 - Submit to CCC
21 4B Emergency Shelters, Transitional
Housing and Supportive Housing,
and Low Barrier Navigation Centers
Process Ordinance for compliance with
State law. Develop procedures to
connect public with resources.
(Ordinance/LCPA and
policy/procedures)
• Secured funding - Cycle 2 HAP Grant funds
awarded Oct 2023 through December 2025
• Initiate consultant selection December 2023
• Housing Element deadline December 2024
• Process Ordinance/LCPA with Program 4A
- PC August 2024
- Council Sept/Oct 2024
- Submit to CCC
In Progress
22 4C Shared Housing Program Continue to offer shared housing program/free roommate referral
services via Del Mar Community
Connections (outreach)
Existing program offered by Del Mar Community
Connections
Ongoing
23 4D Inclusionary Housing Ordinance Process amendments for compliance with State law (Ordinance)
• Select consultant by December 2023
• Housing Element deadline June 2024
• Process Ordinance with Density Bonus and
condominium conversion modifications
- PC March 2024
- Council April/May 2024
In Progress
24 4E Condominium Conversions Continue to implement existing processing requirements of Subdivision
Map Act and mitigation requirements
per DMMC 24.21.025 (publish
procedure/amend Ordinance with
Program 4D)
• Select consultant by December 2023
• Housing Element deadline June 2024
• Process Ordinance with Density Bonus and
condo mods
- PC March 2024
- Council April/May 2024
In Progress
20 November 13, 2023 Item 09
8 25 5A Expand Allowance for the
Renovation and Improvement of
existing Multi-Unit Structures with
Non-Conformities
Continue to allow retention of nonconforming structures with three or more units to renovate and make
improvements to these existing multiple
dwelling unit structures. Expand to
incentivize creation of low income units.
Monitor the number of projects that
utilize this program and identify the
number of units conserved or
rehabilitated where applicable.
(procedure/Ordinance)
• Create a policy/procedure to memorialize the
existing accommodation for non-conforming
multi-unit development.
• Process Ordinance with ADUs
- PC July-September 2023
- Council October-December 2023
- Submit to CCC
• In December 2023, City Council will consider
adoption of ADU Ordinance
• December 2023 deadline per Housing Element
• Process second Ordinance/LCPA to create
additional incentives with Programs 1D and 1I
- PC July-September 2023
- Council
- Submit to CCC
In Progress
26 5B Require Housing Impact
Statement in Reports
Adopted City Council policy and
procedure for inclusion of housing
impact statement in Agenda Reports.
Completed City Council adoption of Resolution -
February 2022
Complete
27 5C Preserve Existing Housing
Stock/Short Term Rental Controls
Continue to establish policies and
programs that more effectively address
regulations for short term rentals as a
means to preserve long term housing
stock (Ordinance/LCPA)
• Extended Short-Term Rental (STR) Forbearance
Council Resolution – Jan 2023
• Executed task order with consultant – Jan 2023
• Council determination of guiding principles and
objectives- July 2023
• Reports to Council with baseline conditions –
July, Sep, Oct 2023
• Council review of CCC/court decisions – Sep 2023
• Council direction for prep of Ord/LCPA- Oct 2023
and Jan 2024
• Process Ordinance/LCPA
In Progress
21 November 13, 2023 Item 09
9 - PC April 2024
- Council May-June 2024
- Submit to CCC
• December 2024 deadline per Housing Element
28 6A SB 35 Streamlining – Notice of
State Law Exemption for Coastal
Cities
Provide notice to the public that the City
of Del Mar is a coastal city that is exempt
from SB 35 (post notice on web page)
Completed by publishing notice on City web page of
local exemption from SB 35 because the City of Del
Mar is a coastal city in the jurisdiction of the
California Coastal Commission – January 2022
Complete
29 6B Affirmatively Furthering Fair
Housing per AB 686
Goal to create 100 additional housing
opportunities beyond RHNA to improve
housing choice and affordability options
for moderate income, lower income, and
special needs households. Participate in
regional efforts, partner with
organizations to review and refer
discrimination complaints, and
implement various actions. Ongoing
commitment to review disability
complaints and partner in regional
efforts; to review discrimination
complaints and partner with orgs such as
Legal Aid Society of San Diego to address;
to help connect seniors and students to
available housing opportunities including
roommate referral services; annual
coordination in regional efforts to
partner on strategies to address
homelessness (Program 7J)
(outreach and funding)
• Created new density bonus opportunities in NC
and PC zones (Programs 1A and 1B) – June 2022
• Demonstrated feasibility for low income units on
Fairgrounds and City-owned sites – June 2022
• Posted community assistance resources on City
web page –July 2022
• Demonstrated feasibility for low income units on
privately owned sites – January 2023
• City Council adopted SB 9 Ordinance/LCPA June
19, 2023; LCPA is pending CCC certification
approval
• Legal Aid Society conducted Fair Housing
Trainings for City staff - October 2023
• Update to Council on Low Income Beach Parking
Pass Program – December 2023
• New Environmental Justice Element in process
(Program 6E)
• Multiple Ordinances in process to incentivize
development of low income units (Program 1D,
1I, 2A, 5A)
In Progress
22 November 13, 2023 Item 09
10 • Multiple Ordinances in process to create
opportunities beyond RHNA (Program 1D, 1C, 1F,
1H, 2A, 2B, 2F)
• Multiple Ordinances to address housing for
special needs populations by December 2024
• Publish fair housing materials in English and
Spanish by June 2024
30 6C Continue Data Collection and
Compliance with the Coastal Act
and Housing Element-Related
Requirements applicable to the
Coastal Zone, including StateMandated Accommodation of Housing Development Capacity
Continue to collect data and maintain
records regarding affordability. Work
with the Coastal Commission and HCD to
“harmonize” the Coastal Act and State
Housing laws and identify a strategy to
best accommodate future development
capacity as assigned to the City for the
6th Cycle. (spreadsheet tracking and
annual reports)
The City continues to collect data and maintain
records regarding affordability levels of units
produced and has effective measures in place to
address how proposed development can
potentially impact existing households.
The City continues to work with the Coastal
Commission and HCD to “harmonize” the Coastal
Act and State Housing laws.
Ongoing
31 6D Solar Panel Installation
Partnership
Partner with Renewable Cities San Diego
to install solar on housing for lower
income households (resolution)
Process Resolution by December 2024
Look into potential crossover with ADU Amnesty
Program for solar on legalized units that become
income restricted rentals
Not started
32 6E Environmental Justice Element Process Community Plan Amendment to establish policies to reduce community
health risks and address Affirmatively
Furthering Fair Housing Issues per
Assembly Bill (AB) 686. (General
(Community) Plan Amendment)
• Draft in progress
• Will use free 72 hours of SANDAG Technical
Assistance to finalize draft by March 2024
• Process for General Plan Amendment with
Program 6J Safety Element:
- PC – May 2024
- Council – June/July 2024
In Progress
23 November 13, 2023 Item 09
11 (Housing Element indicates by June 2023)
33 6F Vote Threshold for HousingRelated General Plan Amendment Explore whether to modify local vote
threshold for super majority to apply
State’s simple majority (study and
potential Ordinance/public vote)
Determined local vote threshold requiring a super
majority vote (instead of simple majority) is not an
impediment. Will involve ongoing consultation
with City Attorney to ensure no actual conflict with
State law
Ongoing
34 6G Objective Design Standards Prepare and process objective design standards for housing that is eligible for
by-right processing (Ordinance)
• Selected consultant - July 2023
• Housing Element deadline is June 2024
• Process for Ordinance:
- Community survey
- Kickoff DRB/PC workshop - Dec 2023
- DRB advisory meetings
- Draft by March 2024
- PC Recommendation - June 2024
- Council - July/Sep 2024
In Progress
35 6H Safety Element Process Community Plan Amendment to update the existing Safety Element.
Coordinate with CalFire and State Board
of Forestry. (General (Community) Plan
Amendment)
• Draft in progress
• Will use free 72 hours of SANDAG Technical
Assistance to finalize draft by March 2024
• Process for General Plan Amendment with
Program 6E EJ Element:
- Board of Forestry – April 2024
- PC- May 2024
- Council – June/July 2024
(Housing Element indicates by June 2023)
In Progress
36 7A Housing Funding Resources
Including Housing Assistance and
Housing Reserve Funds
Continue to make funds accrued in the
Housing Assistance Reserve fund
available for affordable housing. Ensure
that the funds remain available for at
least four lower income households via
Reports will be completed on an annual basis
demonstrating that the funds remain available for
at least four lower income households via rental
subsidy and/or for new affordable housing
Ongoing
24 November 13, 2023 Item 09
12 rental subsidy and/or for new affordable
housing (i.e., for the acquisition of land
and construction of affordable units to
be made available for individuals or
families of extremely low, very low or
low-income levels). (annual report to
City Council with budget)
37 7B Interfaith Partnership
Opportunities
Continue to encourage inter-faith shelter
network rotating shelter and St. Peter’s
Helping Hands (annual report to City
Council with budget)
Reports will be completed on an annual basis
demonstrating how various partners, including
interfaith partners (i.e., St. Peters), facilitate
provision of homeless assistance resources in Del
Mar
Ongoing
38 7C Resources for Persons with
Disabilities
Publish a resource list of programs and
opportunities for persons with
disabilities (updated list to be published
within 3-6 months of Ordinances
processed per Programs 4A and 4B)
Reports will be completed on an annual basis
identifying available assistance resources for
persons with disabilities
Ongoing
39 7D Housing Choice Voucher
Program
Contract with the County of San Diego
for Housing Choice Voucher Program
(resolution to process contract)
Process Resolution to contract with the Housing
Authority for the County of San Diego for housing
choice vouchers to facilitate rental assistance in Del
Mar using federal funds
Ongoing
40 7E Fee Waiver Program Continue the fee waiver program (Resolution to extend fee waiver if
needed)
Reports will be completed on an annual basis
identifying any applications where fee waivers are
granted to facilitate production of affordable
housing
Ongoing
25 November 13, 2023 Item 09
13 41 7F Monitor and Respond to
Complaints of Constraints to
Housing for Lower Income
Households and Persons with
Disabilities
Monitor and respond to complaints of
constraints to housing for lower income
households and persons with disabilities
such as impediments to maintenance,
improvement, or development of such
housing. Continue to work with local
non-profits to connect people with
assistance and resources. (annual report
to City Council with budget)
Reports will be completed on an annual basis
identifying if any complaints were filed, the status,
and the steps taken to resolve complaints
Ongoing
42 7G Senior Housing Resources and
Assistance
Continue to partner with Del Mar
Community Connections (resolution to
extend contract)
Reports will be completed on an annual basis
identifying available assistance resources for
seniors
Ongoing
43 7H Student Housing Resources and
Assistance
Connect students with affordable
housing options in Del Mar, including
ADUs (outreach/resource list)
Reports will be completed on an annual basis
identifying available assistance resources for
students
Ongoing
44 7I Database of Community
Assistance Programs
Maintain list of community assistance
programs (resource list)
On an annual basis the community assistance
programs list will be maintained and updated.
Ongoing
26 November 13, 2023 Item 09
14 45 7J Efforts to Reduce Homelessness Continue to collaborate with San Diego Regional Task Force on Homelessness
(RTFH) including point in time counts and
other partnership opportunities.
Connect individuals and businesses
seeking available services to address
homelessness including coordination
with the County-sponsored outreach
worker for Del Mar, County’s Mobile
Crisis Response team (MCRT) and the
Sheriff’s Department Crime Prevention
team. Adopt a City Council Resolution in
support of Senate Bill 1338.
City Council adopted Resolution in support of
Senate Bill 1338 (CARE Court compassionate care
strategy) on June 6, 2022.
City continues to collaborate with the San Diego
Regional Task Force on Homelessness (RTFH) (i.e.
point in time counts; partnership opportunities).
City coordinates with its assigned Countysponsored outreach worker for Del Mar and the County’s Mobile Crisis Response team (MCRT) to
connect individuals seeking available services to
address homelessness.
City also helps connect local businesses with the
Sheriff’s Department Crime Prevention team for
assistance with services to address homelessness.
Ongoing
27 November 13, 2023 Item 09
City of Del Mar
Agenda Report
________________________________________________________________________________________________________ City Council Action:
TO: Honorable Mayor and City Council Members
FROM: Jorge Sanchez, Deputy Fire Chief
Josh Gordon, Fire Chief
Via Ashley Jones, City Manager
DATE: November 13, 2023
SUBJECT: Approval to Purchase Firefighter Self Contained Breathing Apparatus and Rapid Intervention Team Packs
REQUESTED ACTION/RECOMMENDATION:
Staff recommends that the City Council: 1) Authorize the purchase and replacement of critical fire equipment including (10) Self Contained Breathing Apparatus (SCBAs), (1) Rapid Intervention Team Packs, and related accessories totaling $122,445.77 from Municipal Emergency Services (MES) (Attachment A); 2) Authorize the City Manager to execute the necessary documents; and 3) Amend the Fiscal Year 2023-2024 Operating and Capital Budget as described in the Fiscal Impact section of this report.
BACKGROUND:
Self-Contained Breathing Apparatus (SCBAs) are essential devices worn by firefighters and rescue workers to provide breathable air in hazardous environments that pose an immediate threat to life and health. These critical pieces of personal protective equipment (PPE) include a high-pressure air tank, pressure regulator, and an inhalation connection.
They are constructed using lightweight, flame-resistant materials to ensure they do not hinder a firefighter's mobility or ability to rescue individuals from danger. Modern SCBAs are equipped with Personal Alert Safety Systems (PASS) or Automatic Distress Signal Units to aid in locating firefighters in distress.
SCBAs are a firefighter's lifeline in hazardous environments, enabling them to carry out physically demanding tasks such as hose handling, ladder operations, and rescues in burning buildings. Compliance with the National Fire Protection Association (NFPA) 1981 standard is crucial for the operation, maintenance, cleaning, and storage of SCBAs. This standard is revised every five years, with the latest edition effective in 2024.
DISCUSSION/ANALYSIS:
The City of Del Mar's Fire Department is approaching the end of the third NFPA cycle for their SCBA fleet, purchased as refurbished SCBA’s in 2017 under the 2007 edition of NFPA 1981, rendering them non-compliant in 2024. The annual testing of these systems, 1 November 13, 2023 Item 10
City Council Staff Report
Fire Department SCBA Replacement
November 13, 2023